On Monday afternoon local time, Nokia filed a motion to seal all the meaningful parts of... a motion to seal (a motion for a protective order concerning confidential information, to be precise). Nokia wants some documents kept from the public in the second Apple v. Samsung patent litigation in California that involve the Finnish company and Samsung, but the very topic of those documents is so secretive that Nokia even wants the motion for the protective order itself (along with a declaration to which some supporting documents are attached) sealed.
This passage of Nokia's filing is interesting, though unspecific:
"The underlying motion relates to confidential communications between Nokia and Samsung, which are subject to a non-disclosure agreement [...]. Disclosing the purpose of the NDA could itself violate the NDA. The attached confidential declaration of Ryan Koppelman, as well as the underlying motion for protective order and its supporting materials, provide additional context and explanation of the sensitive nature of the information at issue."
(emphasis added)
So even the purpose of the NDA -- i.e., a high-level description of the nature of the discussions between the companies that are subject to the NDA -- is and must remain a secret. And the subsequent paragraph clarifies that "[c]ertain aspects of the underlying motion for protective order also relate to Nokia's license agreement with Apple". This means the 2011 Nokia-Apple deal (commentary on announcement of settlement, report on Apple portrayal of the deal as a "provisional" license for a limited "standstill" period) is of some relevance to the topic of those Nokia-Samsung conversations, but it's only part of the story.
The document also reveals that "Nokia's accompanying motion relates to a dispute that has arisen in the course of Samsung's document requests, including an apparent failure to protect Nokia's confidential information under the terms of existing protective orders". So Nokia is concerned that material requested by Samsung for use in its dispute with Apple could become known to the public, which Nokia doesn't want to happen.
This blog focuses on facts, but not exclusively. It's also opinionated, and every once in a while there's justification for engaging in speculation. This is such a case. Let's think about what Nokia and Samsung might be (or have been) talking about:
This could be (or have been) about a potential acquisition of Nokia by Samsung. The mere fact that the companies are (or were) talking about M&A would be a secret.
In the alternative to a sale of the entire company, this could also relate to a sale of parts of Nokia's patent portfolio to Samsung. Nokia might own patents that could be helpful to Samsung in the dispute with Apple (and possibly other companies, such as Ericsson). In this context any encumbrance rendering patents unenforceable against Apple would be key. But if Apple is right that this is just a "provisional" license for a limited "standstill" period, then any encumbrances may go away in the foreseeable future.
The subject of the confidential talks could have been patent licensing. In that case I doubt that it's just about standard-essential patents: pretty much everyone in the industry has a license to Nokia's SEPs (Nokia recently said "more than 40 companies [were] licensed to Nokia standards essential patents"). But Nokia's non-standard-essential patents are not broadly licensed, and Nokia is asserting dozens of them against HTC's Android-based devices (and a subset of them against ViewSonic's Android-based products as well). At some point Nokia and Samsung will have to sort out non-SEP issues by identifying which patents they'd license to each other and which of them a party would like to keep exclusively for product differentiation purposes. A non-SEP license deal with Samsung could be very lucrative for Nokia.
The proposed order attached to Nokia's motion refers to a "petition to confirm an international arbitration award", but I'm sure this is just a clerical error: the document was presumably based on one created in a Nokia v. RIM case in the same district. Someone forgot to replace the last part of a long headline. [Update] On Tuesday, Nokia filed a corrected version of the proposed order which now just refers to a motion for a protective order as opposed to a petition to confirm an arbitration award. [/Update]
News agencies (Reuters being the most proactive one) have repeatedly challenged the handling of confidential business information in the Apple v. Samsung cases in California, and various sealing issues in these cases were taken all the way up to the Federal Circuit. The level of protection Nokia is seeking here may or may not be granted by the courts. But even if the court merely decided to stay an unsealing order pending an appeal, it would take a while before anything more than what Nokia is prepared to disclose would, if ever, enter the public record. In the meantime whatever transaction Nokia and Samsung may be or have been contemplating will or won't happen. So I'm not too hopeful that we'll find out about this from further filings in this case before some kind of acquisition or license deal (or, in the absence of a license deal, litigation) materializes or falls through. But we know that something very interesting is or was going on.
Here's Nokia's filing (to the extent that it was made public at all):
13-07-01 Nokia Motion to File Under Seal
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