Intellectual property has overtaken real property in worldwide commerce.
It is the most sensitive resource in play. Both confidential and public procedures for
resolving differences are critical. Joint Defense Agreements (‘‘SDA’’) and Common
Interest Agreements (‘‘CIA’’) serve this purpose. They enlarge the attorneyclient
privilege, enabling all participating clients and lawyers to share sensitive
information freely. Most tribunals have rules for protecting sensitive information
exchanged in negotiations. In the U.S., Federal Rule of Evidence 408 both protects
confidential negotiations and maintains appropriate public access. Court orders
sealing the parties’ confidential materials in their files also serve this purpose.
Litigating over smart phones and i-pads, Samsung and Apple set aside their differences
enough to cooperate in filing sensitive materials under seal. Intellectual
property and competition policy-making call for large scale interactions through
standard-setting organizations. The boundary between private and public intellectual
property processes is essential to the effective functioning of the overall
framework.

EB00000004047K

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• Negotiating and litigating intellectual property: with and in confidence