Friday, November 02 11:18:30
Two weeks before trial in a high-stakes lawsuit pitting Google's Motorola Mobility unit against Microsoft, Google made what has become a common request for a tech company fighting for billions of dollars: a public court proceeding conducted largely in secret.
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 Nov. 13 in Seattle. U.S. 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.
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. 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--though the 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.