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November 02, 2012

Microsoft News - Courtroom Secrecy a Large Concern in Microsoft Versus Google Trial

By Colleen Lynch, TMCnet Contributor

The trial between Google’s Motorola (News - Alert) Mobility and Microsoft is proving to be a high-stakes event, with Google making a request to conduct the public court proceeding in secret. The worry of how to ensure sensitive business information doesn’t leak is standard for a tech company worth billions of dollars.

With only two weeks before the trial date, Google (News - Alert) is understandably concerned, specifically about the royalty deals that Motorola cuts with other companies on patented technology, which will come up in the trial.

U.S. District Judge James Robart is presiding over the case and has blocked many pre-trial legal briefs from public view; however he has yet to rule on Google’s new request.  The search giant has reportedly asked in addition to keeping documents on seal to have the courtroom cleared during crucial testimony.

 “There are plenty of cases that have settled because one party didn’t want their information public, said Dennis Crouch, intellectual property professor at the University of Missouri School of Law.

The problem is not that confidential information is not protected under the law, but that companies must prove exactly how the disclosure would be harmful, and it needs to be done prior to trial. With the court date set for November 13, this is crunch time.

Google’s argument is that revelations about licensing negotiations would give competitors “additional leverage and bargaining power and would lead to an unfair advantage,” Crouch explained.

Recently, the issue of information protection has come up often as both Apple Inc. and Microsoft have started litigating in courts all over the world against Google Inc., or other partners like Samsung (News - Alert) Electronics Co. Ltd.

The Apple versus Samsung case has been especially prominent in the media, yet both companies kept many of the documents brought up in court sealed. Reuters (News - Alert) did intervene at one point to challenge the companies’ requests for secrecy, claiming it should be allowed to report financial details, and won.

U.S. District Judge Kucy Koh ordered the companies to disclose a host of information the companies claimed was secret, including profit margins on individual products. The judge did not order licensing deals to be disclosed, yet Apple and Samsung are still appealing the disclosure order.

In a similar case in Wisconsin, Apple is bringing Motorola to court over patent deals as well, while in this case both companies have filed the overwhelming majority of their court documents entirely under seal. The judge in that case, U.S. District Judge Barbara Crabb, did not even require the companies to seek advance permission for the filing, and did not mandate redacted copies be made for the public.

Crabb stated that the upcoming trial would be open, saying, “Whatever opinion I make is not going to be redacted.”

Although the cases are similar, there’s no telling whether Robart will make the same decision as Crabb.

Bernard Chao, an IP professor at the University of Denver (News - Alert) Sturm College of Law, commented on the frustration behind Google’s request, and similar requests made in similar cases. He added, “Just because there is a seed or kernel of confidential information doesn’t mean an entire 25-page brief should be sealed.”

At this time, Microsoft has not taken a stance on Google’s motion, although in the past Microsoft has supported bids from Google to seal documents.

Edited by Jamie Epstein

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