Wednesday, March 26, 2014

Not only in America: the fight for access to sealed Apple-Samsung court documents

This week I'm spending my time mostly on software development, but today is an exception and I wanted to share some information of the kind I usually don't blog about. In connection with the Apple v. Samsung dispute in the U.S., Reuters, MLex and others (such as the First Amendment Coalition, whose members include the Associated Press, the Los Angeles Times, and Wired) filed formal petitions to grant the general public access to certain sealed court documents (relating to damages estimates, for example). At the time I thanked them for this effort on Twitter.

Their fight for the important cause of transparency inspired and encouraged me not to back down when I encountered some resistance to various requests for access to the case files of nullity (patent invalidation) actions pending before the Federal Patent Court of Germany. There is no such thing as PACER in my country. The only way to find out about the details of patent infringement cases is to attend the hearings and the announcements of the decisions in person (which I do all the time, though I don't blog about it if I do so for clients who wish to receive exclusive, private reports). Nullity (invalidation) cases are separate proceedings (this is called "bifurcation", and I criticized it in my previous post), and at least there is some degree of transparency there -- no PACER-like electronic access, but at least any member of the general public can file a petition and, if the petition succeeds, take a look at the original case file in what they call the "public search room" (that's the official English translation) of the German Patent and Trademark Office (which, like the Federal Patent Court, is based in Munich).

Once a petition is filed, the parties to a nullity action are asked to designate documents as confidential. If the petitioner narrows the request accordingly, which is what I usually do, then there is no dispute and all other documents are made available in the "public search room". Otherwise the court has to decide whether to grant the sealing requests.

In the cases in which I petitioned, I didn't run into any disagreement with Apple, Microsoft, and Motorola Mobility. And for the most part I had no problem with Samsung either, but in a couple of cases its lead patent attorney in the Apple cases, Zimmermann & Partner's Dr. Joel Naegerl ("Nägerl" in German), was too protective of his client's interests in confidentiality for my taste. Dr. Naegerl has done a great job for Samsung on the defensive side and deserves most of the credit for getting Apple's slide-to-unlock patent invalidated about a year ago (a member of the same patent family will go to trial in California on Monday, but fortunately for Apple, neither Dr. Naegerl nor any of the judges of the Federal Patent Court will be on the San Jose jury). I just couldn't accept some of his sealing requests.

Among other things Dr. Naegerl opposed my access to a preliminary ruling on Apple's photo gallery patent (which was also invalidated). And he claimed that any document in a nullity case file that relates to a parallel infringement case is confidential just because the courts hearing the infringement cases don't grant the general public access to documents. Some of the documents filed in infringement cases undoubtedly contain confidential business information, but some don't. I just wanted to ensure that someone who puts in a sealing request (regardless of whether we're talking about Samsung or anyone else) at least has to state a reason that is specific to the content of a document.

My concern was that if I accepted this, I would over time be denied access to ever more documents in the nullity case files. At the same time I didn't want to contribute to the workload of the Federal Patent Court. So I picked only a few key issues, hoping that the court would set the record straight on the sealing standard. And it did. In one of those cases, the court sent out an informal notice clarifying the standard, but since I was able to obtain a preliminary ruling, I no longer needed a formal ruling on my petition. In two other cases, a formal decision was necessary. I recently obtained a copy of the preliminary ruling on the photo gallery patent, and in a parallel matter the court allowed me, over Samsung's objections, to read Apple's sur-reply (from the infringement proceedings) in the infringement case over Samsung's smiley input method patent. Here's the front page of the related decision (this post continues below the document):

Today I went to the "public search room" and read the sur-reply. The document revealed nothing confidential (such as licensing terms, licensing negotiations, inner workings of products etc.). I depend on access to documents for my patent litigation-related work, and a reasonable degree of transparency is also in the public interest. Just like I had a "free-rider" benefit from the effort that others made in California, I hope that others will benefit from my work here in Germany, a hotbed for patent litigation between global players.

Next week's California trial will be public proceeding. I won't be able to attend it, but I will follow it to the extent that I can over the Internet, particularly Twitter. Maybe I'll do a pretrial post on Monday, but it's also possible that I'll focus on the Supreme Court hearing in CLS Bank v. Alice on Monday (some stakeholders try to turn this into a general debate over whether computer-implemented inventions should be patent-eligible, an issue I'm very interested in for a variety of reasons, including that I'm soon going to file my first patent application) and blog about Apple v. Samsung only after the first couple of days (after both parties' opening arguments etc.).

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