Microsoft vs Google: court secrecy leaves public in the dark - PC Pro

By Reuters

Posted on 2 Nov 2012 at 09:59

Two weeks before a trial in a high-stakes lawsuit pitting Google's Motorola Mobility against Microsoft, Google has made what has become a common request for a tech company: for a public court proceeding conducted largely in secret.

The move comes as 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.

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 on 13 November. US 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.

Just because there is a seed or kernel of confidential information doesn't mean an entire 25-page brief should be sealed

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, but 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.

Global issue

Apple and Microsoft have been litigating in courts around the world against Google and partners like Samsung Electronics, 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. US 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.