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HUAWEI’S MOTION TO SEAL

CASE NO. 5:17-CV-00220-LHK

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SIDLEY AUSTIN LLP

David C. Giardina (pro hac vice)

dgiardina@sidley.com

One South Dearborn

Chicago, IL 60603

312-853-7000 – Telephone

312-853-7036 – Facsimile

SIDLEY AUSTIN LLP

Nathan A. Greenblatt (SBN 262279)

ngreenblatt@sidley.com

1001 Page Mill Road, Bldg. 1

Palo Alto, CA 94304

650-565-7000 – Telephone

650-565-7100 – Facsimile 

Attorneys for Non-Party HUAWEI DEVICE USA, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

 v.

QUALCOMM INCORPORATED,

Defendant.

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Case No. 5:17-cv-00220-LHK

 

HUAWEI’S MOTION TO SEAL 

PORTIONS OF CERTAIN TRIAL 

EXHIBITS

Case 5:17-cv-00220-LHK Document 1195 Filed 01/08/19 Page 1 of 6
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HUAWEI’S MOTION TO SEAL

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Pursuant to Civil Local Rule 79-5 and the Court’s Order Vacating Portions of Sealing Order, 

ECF No. 1100, Regarding Pegatron and Wistron and Huawei and Ordering Pegatron and Wistron 

and Huawei to Refile Sealing Motions (Dkt. 1149) (the “Order”), third party Huawei Device USA, 

Inc. (“Huawei”) respectfully moves the Court to permit sealing of portions of certain trial exhibits 

that contain Huawei confidential information.

The Order vacates the Court’s sealing order relating to four Huawei documents (collectively, 

the “Licensing Agreements”) and permits Huawei “to file narrowly-tailored sealing motions” for 

those documents by January 8, 2019. Dkt. 1149 at 1-2. Huawei now moves to seal certain portions 

of those documents because they reflect the terms of confidential license agreements and/or 

information relating to on-going confidential license negotiations, the public disclosure of which 

would harm Huawei’s competitive standing:

Document Party 

Claiming 

Confidentiality

Portions to be Sealed Relevant 

Standard 

for Sealing

Basis for Sealing & 

Any Explanations

JX-022 

(Exhibit 1 

hereto)1

Huawei Device 

USA, Inc. 

(“Huawei”)

Highlighted portions of 

FTC-Huawei-0000706; 

FTC-Huawei-0000711; 

FTC-Huawei-0000713-

15; FTC-Huawei0000719; HuaweiQualcomm-0000536

Compelling 

reasons

Declaration of Steven 

M. Geiszler In 

Support of Huawei’s 

Motion to Seal 

(“Geiszler 

Declaration”) ¶¶ 4-5

JX-027

(Exhibit 2 

hereto)

Huawei Highlighted portions of 

FTC-Huawei-0000698; 

FTC-Huawei-0000701

Compelling 

reasons

Geiszler Declaration 

¶¶ 4

JX-097 

(Exhibit 3 

hereto)

Huawei Highlighted portions of 

FTC-Huawei-0000651-

55; FTC-Huawei0000657

Compelling 

reasons

Geiszler Declaration 

¶¶ 4, 6-7

JX-098 

(Exhibit 4 

hereto)

Huawei Highlighted portions of 

FTC-Huawei-0000573-

77; FTC-Huawei0000580-87; FTCHuawei-0000590-97; 

FTC-Huawei-0000602-

03; FTC-HuaweiCompelling 

reasons

Geiszler Declaration 

¶¶ 4, 6-7

 1 Huawei is submitting highlighted copies of each exhibit under seal. Huawei is not submitting 

public redacted versions at this time, because Qualcomm may seek to seal additional portions of 

these exhibits. Huawei is prepared to submit public redacted versions as the Court directs.

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0000610-13; FTCHuawei-0000617-19; 

FTC-Huawei-0000625-

28; FTC-Huawei0000642-49

Parties seeking to seal judicial records relating to motions that are “more than tangentially 

related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., 809 F.3d 1092, 1099 

(9th Cir. 2016), bear the burden of overcoming the presumption with “compelling reasons supported 

by specific factual findings that outweigh the general history of access and the public policies 

favoring disclosure,” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), 

447 F.3d at 1178–79 (internal quotation marks and citation omitted). Compelling reasons justifying 

the sealing of court records generally exist “when such ‘court files might have become a vehicle for 

improper purposes,’ such as the use of records to gratify private spite, promote public scandal, 

circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. Warner 

Commc’ns, Inc., 435 U.S. 589, 598). The United States Supreme Court has recognized that sealing 

may be justified to prevent judicial documents from being used “as sources of business information 

that might harm a litigant’s competitive standing.” Nixon, 435 U.S. at 598. The Ninth Circuit has

held, and this Court has previously ruled, that “pricing terms, royalty rates, and guaranteed minimum 

payment terms” of patent licensing agreements plainly constitute trade secrets, and are thus sealable. 

In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008); accord Dkt. 1149 at 1.

I. Huawei’s Requests to Seal Royalty and Other Financial Terms of its License

Agreements with Qualcomm

This Court in Apple Inc. v. Samsung Elecs. Co. recognized that royalty information in patent 

license agreements sought to be introduced at trial should be kept under seal. No. 11-cv-01846, 

2012 WL 3283478, at *6 (N.D. Cal. Aug. 9, 2012). In Apple, this Court found that “disclosing the 

terms of these licensing agreements will put [Apple] at a disadvantage in negotiations for future 

licensing deals.” Id. (granting-in-part motion to seal license agreements and redact royalty rates and 

payment terms), rev’d on other grounds, 727 F.3d 1214 (Fed. Cir. 2013). Here, as explained in the 

accompanying Declaration of Steven M. Geiszler (“Geiszler Decl.”), the bulk of the identified 

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portions of the License Agreements should be sealed for the same reasons. The designated portions

disclose royalty arrangements and related financial terms between Huawei and Qualcomm, 

disclosure of which would put Huawei at a competitive disadvantage. Geiszler Decl. ¶ 4. The 

royalty rates and payment terms contained in the License Agreements are the type of sensitive, nonpublic trade secret information that courts regularly order sealed under the “compelling reasons” 

standard. In re Elec. Arts, 298 F. App’x at 569; Apple, 2012 WL 3283478, at *4; see also TIBCO 

Software, Inc. v. KAAZING Corp., No. 16-cv-06949-BLF, 2016 U.S. Dist. LEXIS 175307, at *4-5 

(N.D. Cal. Dec. 19, 2016) (sealing “the terms and financial data” included in a license agreement). 

II. Huawei’s Requests to Seal Non-Financial Terms of its License Agreements with 

Qualcomm

In addition to royalty rates and financial terms, the Ninth Circuit has recognized that sealing 

is proper for non-monetary terms as long as the terms consist of trade secrets. See In re Elec. Arts, 

298 F. App’x at 569 (sealing information that falls under the definition of “trade secrets,” which 

consist of “any formula, pattern, device or compilation of information which is used in one’s 

business, and which gives him an opportunity to obtain an advantage over competitors who do not 

know or use it”). This Court and other Ninth Circuit courts have permitted sealing portions of 

agreements where disclosure of certain terms would harm the party’s standing in future 

negotiations. See Thomas v. Magnachip Semiconductor Corp., No. 14-cv-01160-JST, 2016 WL 

3879193, at *7 (N. D. Cal. Jul. 18, 2016) (sealing a termination provision in a class action 

settlement agreement “to prevent third parties from utilizing it for the improper purpose of 

obstructing the settlement and obtaining higher payouts”); PCT Int’l Inc. v. Holland Elecs. LLC, 

No. 12-cv-01797, 2014 WL 6471419, at *2, *6 (D. Ariz. Nov. 18, 2014) (sealing descriptions of 

license agreements that contain trade secrets because the agreement terms were important to the 

party’s standing during patent licensing negotiations); Ovonic Battery Co. v. Sanyo Elec. Co., No. 

14-cv-01637-JD, 2014 U.S. Dist. LEXIS 82687, at *11 (N.D. Cal. Jun. 16, 2014) (party could 

narrowly tailor its sealing motion by redacting “all sensitive information in the agreement, 

including . . . any other detailed product-specific financial information” that could harm the party’s 

competitive standing). In Powertech Tech., Inc. v. Tessera, Inc., this Court went so far as to seal an 

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entire license agreement and appendices because they “contain information regarding the licensing 

relationship between the parties.” No. C 11-6121 CW, 2012 WL 3283420, at *9 (N.D. Cal. Aug. 

10, 2012). 

Here, while the bulk of the provisions for which Huawei requests sealing pertain to the 

financial terms of the License Agreements, Huawei also respectfully requests that a small number 

of other provisions be sealed. These competitively-sensitive provisions pertain to: (i) the scope and 

content of the license and other rights (including the nature and limitations on pass-through rights) 

that Huawei extended to Qualcomm (and vice versa) and the conditions under which such rights 

may be terminated or suspended; (ii) certain dispute resolution provisions; (iii) the potential effect 

of certain regulatory actions on the rights of the parties under the agreements; and (iv) the 

identification of certain Huawei customers and other identified firms. See, e.g., JX-097 at FTCHuawei-0000651-55 (Sections 2 and 3); JX-098 at FTC-Huawei-0000575 (Section 3.1.3), FTCHuawei-0000576-77 (Section 3.1.5), FTC-Huawei-0000580-81 (Section 3.2.4), FTC-Huawei0000594-97 (Section 4.3 and 4.4), FTC-Huawei-0000610 (Section 18.2), FTC-Huawei-0000612-13

(Section 25); FTC-Huawei-0000617 (definitions); FTC-Huawei-0000648-49 (lists of Group A and 

Group B customers). The scope and content of each of these provisions were a material 

consideration in Huawei’s decision to enter the agreement, and the content of those provisions is 

competitively sensitive and confidential. Geiszler Decl. ¶ 6. As explained in the Geiszler 

Declaration, Huawei expects that the licensing terms in the agreement are likely to be contested in 

future negotiations with other companies to the extent that other companies from which Huawei 

seeks a license have granted similar rights, such as pass-through rights. Geiszler Decl. ¶ 7. 

Disclosing this information would disadvantage Huawei when negotiating with other licensors and 

licensees. Id.

Huawei has a strong business interest in maintaining the confidentiality of all of the 

highlighted portions of its License Agreements with Qualcomm, including royalty rates, payment 

terms, the scope of the rights exchanged under the agreement (including pass-through rights), and 

the other information identified above. Geiszler Decl. ¶ 7. Within Huawei, access to such 

confidential information is restricted. Consistent with Huawei’s continuous efforts to ensure that its 

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confidential licenses and negotiations are not disseminated more widely than necessary, the 

documents containing this information were produced as “HUAWEI CONFIDENTIAL –

OUTSIDE ATTORNEYS’ EYES ONLY” pursuant to the Supplemental Protective Order. (Dkt. 

218). Id. Public disclosure of this information would create an asymmetry between Huawei and its 

competitors and would hurt Huawei’s competitive standing. Id. The highlighted portions contain 

provisions that were material consideration for the Licensing Agreements. Id.

Accordingly, Huawei respectfully moves to seal the above-listed information at trial. 

Dated: January 8, 2019 Respectfully submitted,

SIDLEY AUSTIN LLP

/s/ David C. Giardina

David C. Giardina (pro hac vice)

dgiardina@sidley.com

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

312-853-7000 – Telephone

312-853-7036 – Facsimile

Attorneys for Huawei Device USA, Inc.

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