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Judge Koh Grants HTC's Redactions; Denies Samsung's Motion to File Supplement Expert Declaration~pj Updated
Wednesday, December 12 2012 @ 12:03 PM EST

It will not surprise you to learn that Judge Lucy Koh has denied [PDF] Samsung's motion to file a supplemental declaration by its expert, Stephen Gray. Apple opposed and indeed her order opens with the same thought used by Apple in its opposition:
On December 4, 2012 – two days before the Court’s scheduled hearing on post-trial motions in this case – Samsung filed an administrative request for leave to file a supplemental declaration of Stephen Gray in support of Samsung’s opposition to Apple’s motion for a permanent injunction (“Request”). ECF No. 2183-1.
Apple said:
Less than 17 hours before the scheduled hearing on Apple’s motion for a permanent injunction, Samsung seeks leave to file a supplemental expert declaration to respond to a reply declaration filed on November 9, 2012 – almost a month ago.
So another denial for Samsung, which can now add it to the list for appeal.

Judge Koh has also ruled on the various requests for sealing. For Samsung, it's two granted, including the HTC one, and another which asks for something Apple asked for too and four denied, with one partly granted; for Apple it's 2 granted and 1 partially granted. It's been like that every time I check who gets the most motions denied.

As for HTC's desire, seconded by Samsung, to more fully redact HTC's license agreement with Apple, she has granted that motion.

Here are the orders:

12/10/2012 - 2190 - ORDER by Judge Lucy H. Koh granting 2125 Administrative Motion to File Under Seal; granting in part and denying in part 2127 Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 12/10/2012) (Entered: 12/10/2012)

12/11/2012 - 2191 - ORDER by Judge Lucy H. Koh denying 2183 Administrative Motion for Leave to File (lhklc2, COURT STAFF) (Filed on 12/11/2012) (Entered: 12/11/2012)

12/11/2012 - 2192 - ORDER by Judge Lucy H. Koh granting 2182 Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 12/11/2012) (Entered: 12/11/2012)

Here are her reasons for changing her mind on the HTC license and letting them redact more than her original order permitted:
On December 3, 2012, this Court issued an Order granting Samsung’s motion for leave to file Apple’s license agreement with HTC, and ruling that only the pricing and royalty terms of the agreement could be filed under seal. ECF No. 2179. Samsung has now filed a proposed redacted version of the license agreement. ECF No. 2182. HTC has filed a response and a declaration in support of Samsung’s proposed redactions. ECF No. 2186.

As this Court has previously explained, the “compelling reasons” standard applies to documents filed in connection with Apple’s motion for a permanent injunction, as, like a dispositive motion, a motion for a permanent injunction cannot be considered tangential to the merits of the case. See ECF Nos. 2047; 2168; 2190. The Ninth Circuit has explained that “‘compelling reasons’ may exist if sealing is required to prevent judicial documents from being used ‘as sources of business information that might harm a litigant's competitive standing.’” In re Electronic Arts, 298 Fed. App’x 568, 569 (9th Cir. 2008) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978).

HTC has proposed to redact portions of the license agreement covering the actual pricing and royalty terms, as well as terms explaining exactly how those royalties are to be determined, for which products, and for which precise features. These terms are closely linked with the actual payment and royalty amounts, and may pose a competitive risk to HTC for the same reasons. Specifically, exposure of the details of how the royalties will be determined for any given product could allow other companies to gain an advantage in negotiating with HTC in the future. Further, HTC, not a party to this action, has carefully identified only the specific portions of the agreement likely to cause actual competitive harm. The relevance of this agreement to the present case is limited to which Apple patents have been licensed. Thus, the public’s interest in disclosure of the details of how royalties are to be calculated is very limited, and is outweighed by HTC’s interest in keeping the most sensitive terms of its license agreements confidential. Accordingly, Samsung’s motion to file under seal, incorporating HTC’s requested redactions, is GRANTED.

So, we, the public, don't get to find out if the license agreement in any way violates the GPL; but since Samsung won the right to see the entire license agreement, surely it's on the ball and already knows the answer to that question.

Still, I'm disappointed, in that sometimes the community's interests and corporate interests are not perfectly aligned, and I'd like to be able to see the details in full for myself. For that matter, I'd like to see the terms of the Microsoft-Android OEM licenses and for the exact same reason.

And since lawyers who are not familiar with the GPL have trouble understanding it, in my experience -- Boies Schiller's quickly withdrawn argument in the SCO v. IBM case that the GPL violates the US Constitution? lordy, how much fun was that? -- let me just say that my understanding is that the GPL v2, the license on the Linux kernel, does not allow paying for patents unless it opens up the patent's use to the world. If you pay just for yourself on GPL code that allegedly infringes someone's patent, you lose your GPL license, and then if you continue to distribute that code after that, it's a copyright violation. Ask your lawyer.

Patent agreements are done in the dark, mostly, as you've seen, but someday someone will care enough to actually force Microsoft and others swashbuckling around against Linux and Android with patents to cough up those details, and then we'll know for sure.

Say, Linux Foundation. How about you? Google? In the house? Judge Koh doesn't think the public has an interest, but she's wrong on that point, but nobody raised it, so it's not her fault.

Update: And Samsung has now officially filed the redacted version of the HTC-Apple license that the judge ordered filed, along with the now-unredacted motion that reveals why Samsung wanted to use the license agreement in this case:

2193 - Filed & Entered: 12/11/2012
NOTICE by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC re [2179] Order on Administrative Motion to File Under Seal Samsung's Administrative Request for Leave to File Declaration re HTC Settlement Agreement (Un-redacted) (Attachments: # (1) Exhibit A to Samsung's Administrative Request (Partially Redacted))(Maroulis, Victoria) (Filed on 12/11/2012)

2194 - Filed & Entered: 12/11/2012
NOTICE by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC re [2192] Order on Administrative Motion to File Under Seal Declaration of Robert J. Becher re Samsung's Submission of HTC Settlement Agreement in Support of Opposition to Apple's Motion for Permanent Injunction and for Damages Enhancement (Attachments: # (1) Exhibit 1 to the Becher Declaration)(Maroulis, Victoria) (Filed on 12/11/2012)

Here's what Samsung told the court was the reason it wanted to file the agreement and use it as evidence:
Pursuant to Civil Local Rules 7-3(d) and 7-11, Samsung respectfully requests leave to file the Declaration of Robert J. Becher Regarding Samsung's Submission of HTC Settlement Agreement in Support of Opposition to Apple's Motion for Permanent Injunction and for Damages Enhancements ("Declaration"). The Declaration is attached as Exhibit A to this Administrative Request. Samsung's request should be granted because the Patent License and Settlement Agreement between HTC America, Inc., HTC Corporation and S3 Graphics Co., Ltd. and Apple Inc., dated November 11, 2012 ("Agreement") was not available when Samsung filed its Opposition to Apple's Motion for Permanent Injunction, and it is relevant to Apple's pending request for a permanent injunction, including on the question of whether monetary relief would adequately compensate Apple....

Moreover, the Agreement is directly relevant to Apple's permanent injunction motion. The Agreement grants HTC a license to all current and future utility patents owned by Apple. (Becher Decl., Ex. 1 at §§ 1.11, 3.1). As a result, the Agreement includes a license to Apple's utility patents at issue in this case--the '915, '381, and '163 patents. This refutes Apple's argument in its reply that the patents at issue in this case are "unavailable for licensing, particularly to competitors." (Dkt. No. 2127 at 7).

Because Samsung could not have presented this evidence earlier, and because the question of whether Apple licenses the patents-in-suit is directly relevant to its permanent injunction motion, Samsung respectfully requests that the Court grant Samsung's Administrative Request for Leave.

  


Judge Koh Grants HTC's Redactions; Denies Samsung's Motion to File Supplement Expert Declaration~pj Updated | 264 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: ukjaybrat on Wednesday, December 12 2012 @ 12:18 PM EST
Corrections

---
IANAL

[ Reply to This | # ]

Comes Here
Authored by: ukjaybrat on Wednesday, December 12 2012 @ 12:22 PM EST


---
IANAL

[ Reply to This | # ]

Newspicks
Authored by: ukjaybrat on Wednesday, December 12 2012 @ 12:24 PM EST
Please include a link to the article

---
IANAL

[ Reply to This | # ]

Off Topic Here
Authored by: ukjaybrat on Wednesday, December 12 2012 @ 12:25 PM EST
For anything not related to the article

---
IANAL

[ Reply to This | # ]

But what can Samsung do with the info?
Authored by: Anonymous on Wednesday, December 12 2012 @ 12:49 PM EST
So, we, the public, don't get to find out if the license agreement in any way violates the GPL; but since Samsung won the right to see the entire license agreement, surely it's on the ball and already knows the answer to that question.
True, but it begs the question of what Samsung could do about it if it spotted a violation. Given the environment in which it gets to see the agreement, it couldn't tell the copyright owners about it, for example. And could it raise in this court a copyright issue between HTC and a third party?

[ Reply to This | # ]

Judge Koh Grants HTC's Redactions; Denies Samsung's Motion to File Supplement Expert Declaration~pj
Authored by: Anonymous on Wednesday, December 12 2012 @ 01:07 PM EST
So much.... interesting?.... stuff in the first part of this
post.

"So another denial for Samsung, which can now add it to the
list for appeal."

No. If everything that has been claimed as a subject for
appeal was actually a subject for appeal in this case, the
initial brief would be, what, 3000 pages long? This isn't a
game of "throw everything against the wall and hope some
stuff sticks." It's pick the best grounds and fight on
those. Appeals have page limits... not that either litigant
has been very good with court limits to date!

"It's been like that every time I check who gets the most
motions denied."

It's almost like one litigant has been more aggressive in
their requests. I wonder if there is a law firm none for
their especially aggressive litigation tactics... heck, they
might even advertise that fact?

"Apple opposed and indeed her order opens with the same
thought used by Apple in its opposition"

Two parties file motions/responses, and present alternate
stories. The judge's job is to accept one of those competing
versions. Ergo, almost all ruling will parrot one version of
events. Not a conspiracy; it's how litigation works.

It doesn't help to view this as rooting for a "team" (team
Apple, team Samsung). They are corporations that have hired
attorneys. They will continue to litigate to their
advantage, and eventually settle. That's how it goes. That's
how it always goes. If you find yourself believing that one
company or the other is "on your side", you will be in for a
world of sorrow in the future.

[ Reply to This | # ]

Vote for Groklaw Thread
Authored by: OpenSourceFTW on Wednesday, December 12 2012 @ 01:14 PM EST
294!! C'mon people, lets go for 300 :P. Legal As She Spoke is in second place with 222.

http://www.abajournal.com/blawg100 (Legal Technology)

9 days left to vote.

---
I voted for Groklaw (Legal Technology Category) in the 2012 ABA Journal Blawg 100. Did you? http://www.abajournal.com/blawg100. Voting ends Dec 21.

[ Reply to This | # ]

Tomi Ahonen says that the Apple iPhone was "a copy of an industrial design winning LG phone"
Authored by: SilverWave on Wednesday, December 12 2012 @ 01:56 PM EST
A Bloodbath for 2010: the Smartphone market preview Quote:
LG A more interesting player in smartphones is LG. LG is the third biggest handset maker out of South Korea and like Samsung, they have pretty much ignored the smartphone space. But - remember the original 'amazing' looks of the iPhone? That totally radical one button touch screen flat 3.5 inch screen wonderphone when first shown by Steve Jobs in January 2007?

The looks of the iPhone, exact dimensions, etc, were considered in January 2007 to be a copy of an industrial design winning LG phone - from 2006. Apple designers cleverly copied an award-winning LG design to create the 'wow' factor in 2007, because LG had not brought this phone to the Western markets (we eventually saw the consumer version of it as the LG Chocolate, released in Europe before the iPhone launched in the USA in 2007). So LG knows fully well how to do this type of phones and form factors. They just haven't bothered to do that as a "smartphone" so far. But the LG Chocolate was Europe's bestselling phone at one point in 2007 and in its lifetime has sold more units than all iPhones.
As a previous poster comments:
Does this suggest that they think that it's OK for Apple to copy the ideas of others but nobody else can do the same thing?

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

What's the GPL got to do with this?
Authored by: Anonymous on Wednesday, December 12 2012 @ 02:11 PM EST
I must be not awake yet, I thought the case was about Apple's patents,
Samsung's alleged infringement of them, and HTC's license to them.
Apple knows all about the GPL, it has GPL components in MacOS.
Apple might have ben displaying some stupidity lately, but that stupid?
Apple also knows about BSD and Apache licenses, it uses them,
so there's a possibility that some of the BSD/Apache licensed parts
of HTC's flavor of Android might come near some of Apple's, but that's
nowhere near this Apple - Samsung case.

How much of Android beyond the Linux kernel is GPL?
I thought the user shell/GUI and the application frameworks
were under a whole slew of other licenses, just like MacOS is.

[ Reply to This | # ]

Can't GPL authors petition the court to see?
Authored by: Anonymous on Wednesday, December 12 2012 @ 03:40 PM EST
The parties who wrote or participated in relevant GPL'd code should be able to
petition the courts to see these documents in order to determine whether or not
these agreements are in violation of the GPL right? It might take some sort of
lawyering I'm sure, but isn't there anyone here who might take up the fight
enough to file a motion of some kind?

[ Reply to This | # ]

Apple's judge rules against Samsung again.
Authored by: Anonymous on Wednesday, December 12 2012 @ 07:19 PM EST

I'm know I'm surprised -- NOT.

[ Reply to This | # ]

Judge Koh Grants HTC's Redactions; Denies Samsung's Motion to File Supplement Expert Declaration~pj Updated
Authored by: Anonymous on Thursday, December 13 2012 @ 03:49 PM EST
Love read Groklaw as the only real factual analysis of the Apple v Samsung saga.
I find the optimism about fairness in the US justice system refreshing. But
seriously is there anyone who expected a US judge and a US jury to act fairly
when the case is between a company viewed in the US as heroic and a foreign
company. That was never going to happen.

[ Reply to This | # ]
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