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Upcoming big trial between Google and Microsoft brings issues about trial secrecy

Motorola Mobility has requested that its legal battle against Microsoft be conducted away from the public eye.  The trial will start in about two weeks and Motorola is simply doing what has become a common practice for big companies when it comes to fighting for billions of dollars in an ever becoming lucrative tech industry.

Google’s Motorola and Microsoft wants to fight inside a court in secret to keep confidential business information from public scrutiny. They are fighting over royalty deals they cut on other companies on patented technology. Microsoft also asked the court to keep the proceedings in secret last Thursday.

The trial, set to begin on November 13, will settle the dispute of both companies over royalty rates.

To accommodate the requests of both parties, US Judge James Robart gave the permission to block legal briefs before the start of the trial. He said that he would be tough on such requests, but the sensitive nature of the case would more likely still give measured information for the public when the decision will be given.

There is a growing concern for legal experts about the secrecy that cases like this are getting, where overtaxed judges usually ignore the issue.

Law professor Dennis Crouch commented that  the common practice of keeping such cases a secret goes against a basic American legal tenet that mandates that court should be public. It also tells companies to use a resource shouldered by the tax-paying public to resolve their differences.

“There are plenty of cases that have settled because one party didn’t want their information public,” Crouch said. Crouch teaches intellectual property at University of Missouri School of Law.

On the other hand, companies in tech industry demands that they should not be forced to reveal private information regarding their business due to the fact that they are fighting in court.

American law allows companies to take their court battles away from the public eye but they need to provide enough reason that such disclosure would be damaging to their part.

For Google, it argues that disclosure of some business information during the trial would provide their rivals “additional leverage and bargaining power and would lead to an unfair advantage.”

Judge Robart has not yet indicated whether or not the trial will be set publicly. Google had previously requested to keep documents under seal and making sure that the courtroom is cleared during confidential testimony.

There is an ongoing speculation whether Robart will keep his final opinion redacted or not. Unlike the landmark case between Samsung and Apple, this one will not have a jury.

There is an ongoing other litigations around the world featuring Apple Inc and Microsoft Corp against Google Inc and its partners including Samsung Electronics Co Ltd regarding the use of Android operating system on smartphones.

Apple claims that its iOS operating system had been infringed and that Android is just a copy of its own, while Microsoft had been contending that its patented technology had been copied in Android.

Google’s acquisition of Motorola Mobility was partly motivated to keep a bargaining chip against its rivals. Motorola, which has a large portfolio of patented communications technology  was purchased by Google for $12.5 billion.

Robart’s opinion will be the determining factor how big the royalty Motorola will get from licenses of its video and wireless patents.

Apple will also battle  Motorola in Wisconsin on Monday next week for another royalty-related issue.

In Wisconsin, both Apple and Motorola presented their documents under seal although there was no order from Judge Barbara Crabb to keep them that way.

Judges are given much leeway to approve requests to seal presented documents and legal standards for such requests are usually high. However, in the case that both parties want to keep the proceedings secret, judges usually give in to such a request.

In the billion dollar case of Apple and Samsung, both companies requested secrecy and kept their documents under seal. However, Reuters challenged the secrecy requests by arguing that it wanted to report details about the finances of both companies. Presiding judge Lucy Kho told the two parties to reveal some information they considered secret that included profit margins on each products. Apple and Samsung are still appealing the order.

Motorola and Microsoft are fighting a so-called “standards essential” patents for a technology being used in the industry. Microsoft said that Motorola’s demand of $4billion per year as a license fee is not fair.

source: reuters