PJ is hoping (and I will say against all hope) that we might get to see the cross-licensing agreement between Samsung and Microsoft, one of those Microsoft signs with equipment manufacturers for use of its “intellectual property” in Linux that Microsoft had been beating the drum about.
I believe the court is predisposed to err on the side of caution and protect information involving a non-party to the litigation. While I do really want to see the full agreement, I think it will be morally wrong, and inappropriate to allow litigants to use a lawsuit to pry information from third parties, so much so that I will err on the side of caution to protect innocent bystanders.
But here is the interesting thing, Samsung is the one that files those agreements. If PJ is right that Samsung files them to support its argument that its FRAND offer to Apple is fair, then I believe we stand a chance to see a redacted copy. The redacted copy will only contains parts relevant to the FRAND claim. The argument goes that if something is Fair, Reasonable and non-discriminatory then there should be no confidentiality or competitive advantage concerns. In fact, there should be a presumption in favour of openness in FRAND licensing terms. Disclosure ensure that nobody, licensors and licensees alike will be shortchanged. Disclosure is actually important tool to help FRAND licensing terms achieve its goal. Without disclosure, how can we judge whether the terms offered to us by vendors claiming to practice FRAND is really Fair, Reasonable or non-discriminatory?
I think the public has an interest and the rights to see everything related to the case to be able to form a informed decisionwhether the right conclusion is reached. However, this right does not extend to disclosing information not related to the litigation. Those information has to be presume to be private regardless of how much we want to see it. Thus, if granted, I believe the judge will order redaction of anything not related the the FRAND claim. Thus we are likely to see the actual sum paid (or the cut Samsung get per device) and even the percentage of the actual sum paid that is actually for the FRAND part of the agreement. However, we might not see anything else.
The difficulty here is to redact the information in a way that is fair to all parties. Is a redacted copy useful to the public if it does not show the actual portfolio Microsoft and Samsung put up in the agreement? Perhaps not. The good news is, those word smiths in law firms would had drafted the agreement with the expectation that a redacted copy will be ordered by the court one day. It will take another set of word smiths to carefully redact it, but we would have had a good start.