Apple vs Samsung Lawsuit Full of Secret Combat

Apple keeps on trying to stop Samsung from selling Galaxy phones and tablets in the United States.

In the lawsuit, filed in April, Apple Inc. accuses Samsung Corp. of 'slavishly' ripping off its designs for the iPad 2 and iPhone 4. Although there is worldwide interest in the case, the proceedings have largely been shrouded behind a veil of secrecy: most of the court papers are sealed, meaning they can't be viewed by the public. Photo: Lenart Kucic/Flickr

Apple and Samsung have been fighting it out in the courts for months – Apple filled a case in April, accusing Samsung of “slavishly” ripping off its designs for the iPad and iPhone.

The proceedings attracted worldwide interest and although it has largely been shrouded a veil of secrecy: most of the court papers are confidential and they can’t be viewed by the public.

In the Apple versus Samsung case, some secrecy requests have languished while investors, academics and bloggers tried to piece together whatever bits of information were available.

U.S. District Judge, Lucy Koh, granted the request in every instance that she did issue a ruling on a sealing motion. This week she has already approved six motions to seal.

So, here are some facts recently revealed: Samsung got 23.8 percent of the global smartphone market in the third quarter, which is nine points higher than Apple has. Even more, Samsung’s holiday sales could be under the danger in case Koh, who is expected to rule any day, grants Apple’s motion to stop Samsung’s sales of Galaxy.

Absence of information in the courts causes many talks among observers.

“For the judicial system as a whole, we want transparency so the public can have confidence in the judicial decision – making process,” said Bernard Chao, a professor at the University of Denver’s Sturm College of Law. “When things aren’t transparent, that view is undercut.”

During a hearing in October Koh asked Apple and Samsung whether they wanted to seal the courtroom. The lawyers said this step wouldn’t be necessary and that they would not mention confidential material during the hearing in any case, Koh commented on this point, “I guess if you all can be careful not to disclose anything that requires sealing, then we can still have that with the open public.”

Samsung’s spokesmen refused to respond to a request for comment on Thursday, and an Apple representative also declined to comment.

Like Koh, many federal judges grant requests to seal documents. For example, in the Eastern District of Texas lawyers don’t even need permission from the judge to file some documents under seal, according to Michael Smith, an IP attorney who practices there.

“The court has made it as easy as they possibly can,” Smith said.

“It comes down to: ‘how do you see the interplay between transparency and protecting the interests of the party,'” responded U.S. District Judge Jeremy Fogel, director of the Federal Judicial Center. “Transparency sounds so noble, so apple pie, but the interests of the parties are important, too.”

The release of Samsung’s redacted brief shows some inconsistencies in what gets sealed, and the reasons for them.

Some time ago, Koh sealed a separate document because, as Samsung reported, it contained “unreleased product launch dates, and information relating to Samsung’s total number of employees, and the number of employees involved in the design and marketing of the products at issue.”

In the Samsung’s brief released this week showed not only number of employees (about 8,500 researches engaged in telecommunications research and development projects), but the dollar amount of its research and development costs as well (over $35 billion for electronics product lines from 2005 to 2010).

The Apple/Samsung case in U.S. District Court, Northern District of California is Apple Inc v. Samsung Electronics Co Ltd et al, 11-1846. [Via Reuters]

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