EFF Presses Federal Circuit To Make Patent Case Filings Public

Federal court records belong to everyone. But one federal court in Texas lets patent litigants treat courts like their own private tribunals, effectively shutting out the public.

When EFF tried to intervene and push for greater access to a patent dispute earlier this year, the U.S. District Court for the Eastern District of Texas rejected our effort.  EFF appealed and last week filed our opening brief with the U.S. Court of Appeals for the Federal Circuit.

EFF is not the only one concerned by the district court’s decision. Several organizations filed friend-of-the-court briefs in support of our appeal. Below, we explain the stakes of this case and why others are concerned about the implications of the district court’s secrecy.  

Courts too often let patent litigants shut out the public

Secrecy in patent litigation is an enduring problem, and EFF has repeatedly pushed for greater transparency by intervening in patent lawsuits to vindicate the public’s right to access judicial records.

But sometimes, courts don’t let us—and instead decide to prioritize corporations’ confidentiality interests over the public’s right to access records filed on the record in the public’s courts.

That’s exactly what happened in Entropic Communications, LLC. v. Charter Commuications, Inc. Entropic, a semiconductor provider, sued Charter, one of the nation’s largest media companies, for allegedly infringing six Entropic patents for cable modem technology. Charter argued that it had a license defense because the patents cover technology required to comply with the industry-leading cable data transmission standard, Data Over Cable Service Interface Specification (DOCSIS). Its argument raises a core patent law question: when is a patent “essential” to a technical standard, and thus encumbered by licensing commitments?

Many of the documents explaining the parties’ positions on this important issue are either completely sealed or heavily redacted, making it difficult for the public to understand their arguments. Worse, the parties themselves decided which documents to prevent the public from viewing.

District court rejects EFF’s effort to make case more transparent

The kind of collusive secrecy in this case is illegal—courts are required to scrutinize every line that a party seeks to redact, to ensure that nothing is kept secret unless it satisfies a rigorous balancing test. Under that test, proponents of secrecy need to articulate a specific reason to seal the document sufficient to outweigh the strong presumption that all filings will be public. The court didn’t do any of that here. Instead, it allowed the parties to seal all documents they deemed “confidential” under a protective order, which applies to documents produced in discovery.

That’s wrong: protective orders do not control whether court filings may be sealed. But unfortunately, the district court’s misuse of these protective orders is extremely common in patent cases in the Eastern District of Texas. In fact, the protective order in this case closely mirrors the “model protective order” created by the court for use in patent cases, which also allows parties to seal court filings free from judicial scrutiny or even the need to explain why they did so.

Those concerns prompted EFF in March to ask the court to allow it to intervene and challenge the sealing practices. The court ruled in May that EFF could not intervene in the case, leaving no one to advocate for the public’s right of access. It further ruled that the sealing practices were legal because local rules and the protective order authorized the parties to broadly make these records secret. The end result? Excessive secrecy that wrongfully precludes public scrutiny over patent cases and decisions in this district.

The district court’s errors in this case creates a bad precedent that undermines a cornerstone of the American justice system: judicial transparency. Without transparency, the public cannot ensure that its courts are acting fairly, eroding public trust in the judiciary.

EFF’s opening brief explains the district court’s errors

EFF disagreed with the district court’s ruling, and last week filed its opening brief challenging the decision. As we explained in our opening brief:

The public has presumptive rights under the common law and First Amendment to access summary judgment briefs and related materials filed by Charter an