Secrecy Concerns Mount as Patent Wars Wage On

GavelThe so-called patent wars continue, with Google’s (NASDAQ:GOOG) Motorola Mobility unit and Microsoft (NASDAQ:MSFT) set to face off in two weeks. Dozens of lawsuits have been filed by the world’s top tech companies over the past year, each trying to claim royalties, gain cheaper access to standards essential patents, or push a competing product out of the marketplace for violating a design patent.

Apple (NASDAQ:AAPL) has famously been litigating against Google on claims that the Android OS copied the company’s mobile iOS. Microsoft has taken issue with certain Android features as well. Apple and Samsung have been at each others’ throats and judges have ruled that certain products can no longer be sold in certain countries as the result of patent infringements. It would float Apple’s boat if a judge found Android in violation of Apple’s intellectual property.

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Google bought Motorola for $12.5 billion in part for its telecommunications equipment capacity, and in part for its large patent portfolio. For its part, Google is leveraging its new portfolio of patents against Apple and Microsoft, but the strategy may have partially backfired.

The Federal Trade Commission has suggested that the government sue Google for violating antitrust laws. Google has reportedly asked courts to ban the sale of products that infringe on its essential patents, but in a few cases the patents involved were considered standards essential.

With the war in full swing, companies are refining their strategies for bringing a case to and through court. Reuters report highlights the delicacy of privacy concerns involved with cases like this. The very existence of patents is a testament to the idea that knowledge is power, but the degree of secrecy is getting out of hand. There are some inherent problems when companies try to settle disputes in a public legal system without disclosing any information to the public.

When two companies are forced to solve their differences using the public legal system, documents are ideally made public. Judges have fairly broad authority to allow companies to block information from public view, but the practice is frowned upon by legal experts. Only in cases in which the information released could in some way be harmful should it be redacted.

Sensitive information such as royalty rates, included in many of the briefs filed in these patent cases, falls under that category. This information could be leveraged by competitors if made public, and as a result entire documents are being blocked from the public. In some cases, swaths of judges’ opinions are being redacted. Judges are often too busy to bother reviewing documents filed under seal, trusting that when both companies want a filing secret they have good cause.

When Reuters challenged a request for secrecy in a case between Apple and Samsung, the judge ordered a range of information be made public, but both companies appealed the decision.

There are legitimate reasons to keep certain types of information private or redacted from briefings and opinions. But as University of Denver Sturm College professor Bernard Chao said, “Just because there is a seed or kernel of confidential information doesn’t mean an entire 25-page brief should be sealed.”

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