Monday, August 13, 2012

Apple appeals Judge Koh's orders to make certain business information public

[Update] Samsung later brought a similar appeal. [/Update]

The ongoing Apple v. Samsung trial in the Northern District of California started only two weeks ago, and we already have the first appeal to the Federal Circuit. Apple has appealed two of Judge Koh's orders on the sealing of documents: one dated July 17, 2012, and another one dated August 9, 2012. Here's the notice (click on the image to enlarge or read the text below the image):

NOTICE IS HEREBY GIVEN that Plaintiff Apple Inc. hereby appeals to the United States Court of Appeals for the Federal Circuit from the Order Granting-in-Part and Denying-In-Part Motions to Seal entered in this action on August 9, 2012 (Dkt. 1649) and the July 17, 2012 Order Denying Sealing Motions (Dkt. 1245).

Apple has also brought a motion to stay the two appealed orders pending the appeal. This does not mean that the trial would have to be interrupted. The only purpose is to ensure that "Apple's confidential financial data and Apple's confidential and proprietary market research reports" not be made public. Apple fears that "[its] competitors could predict Apple's future product releases and marketing campaigns using certain of the confidential survey information that the Court has ordered unsealed". If Apple's appeal succeeded after publication of such information, the genie would be out of the bottle forever. But if Apple's appeal failed, the general public could still be given access to material that shouldn't have been sealed in the first place.

Public access to information has been a big issue in this case, especially in recent weeks. Reuters filed a number of pleadings to defend transparency in this litigation, and while this is undoubtedly a laudable goal, a reasonable balance must be struck with respect to Apple's, Samsung's and any third parties' business secrets.

For some time Judge Koh appeared a bit too protective of confidential business information, and that's why Reuters did the right thing, in principle, by intervening and fighting opacity, but at this stage, a fair amount of highly interesting information, such as Apple's royalty demands (on which I commented in detail this weekend), has become available. Reuters' effort has already been worth its while, but I absolutely understand the concern underlying Apple's appeal and the concomitant motion to stay.

While this is the first appeal to be filed in connection with the ongoing trial, it's already the third appeal fo the Federal Circuit to have resulted from this case. The first one was Apple's partially-successful appeal of Judge Koh's original denial of a preliminary injunction against the Galaxy Tab 10.1. The second one was Samsung's appeal of Judge Koh's post-appeal grant of a preliminary injunction against the Galaxy Tab 10.1. Samsung also appealed a Galaxy Nexus ban, but that one was related to a different litigation between the same parties in the same district before the same judge.

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