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Double Exposure: Keeping Your Confidential Information Out of the Public Eye in the Wake of Apple v. Samsung

Philip J. Graves And Trisha D. Farmer

©2013. Published in Landslide, Vol. 5, No. 5, May/June 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The issues that a court must address in determining whether to seal the record in a patent case present an interesting counterpoint to most other aspects of high-stakes litigation, in which one typically finds adversaries fighting for every advantage until a resolution is obtained by judicial means or settlement: Both sides may agree on the desired resolution, but the story—and the outcome—does not end there.

In Apple v. Samsung,1 Apple sued Samsung under several utility and design patents in connection with Samsung’s sales of its Galaxy phones and tablets in the United States. The case highlights the pitfalls, some unavoidable, in attempting to preserve the secrecy of competitively valuable information when litigating a technology case. Both Apple and Samsung agreed that exhibits containing various categories of financial and technical information that were filed under seal should have remained sealed, but the district court disagreed.2 The outcome: a large volume of information produced by both parties was ordered open to public inspection. While the court’s rulings are currently on appeal,3 this is the poster child for the bell that cannot be unrung. This article explores this important aspect of the case, the standards that the court applied in arriving at its rulings, and the lessons that may be drawn from this example and applied in practice.

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