Legend has it that trolls turn to stone when faced with sunlight. That’s why yesterday, EFF filed a motion in the Eastern District of Texas (a favorite jurisdiction for patent trolls) to intervene and unseal documents in a patent infringement case. In the motions, EFF argues that the plaintiff’s infringement contentions (the documents that lay out, step-by-step, why the defendant’s product is allegedly infringing the patent) are improperly sealed from public scrutiny.

The plaintiff in this case, Traffic Information LLC, claims that two of its patents (U.S. Patent Nos. 6,785,606 and 6,466,862) cover “traffic information systems.” Traffic’s patents are apparently so broad that since 2007, it has sued over 100 different entities, including banks, clothing stores, insurance companies, and even a smoothie shop.

In June, Traffic filed a patent infringement suit against State Farm. Soon after, it served infringement contentions. But Traffic claimed that its contentions were so confidential that State Farm’s outside lawyers couldn’t even tell State Farm why it was being sued for patent infringement. When State Farm answered the complaint, it attached the infringement contentions, but because Traffic labeled them confidential, State Farm’s answer was sealed from public view. Traffic and State Farm settled soon after.

We’re not sure why Traffic has designated its contentions as highly confidential, but in any event, doing so impacts other litigants and the public. For example, sealing can be used to make it more difficult to figure out whether a party is making inconsistent statements. Sealing can also make it difficult for a defendant to figure out whether it has certain defenses, such as exhaustion (i.e. the accused products and methods are already licensed). And by keeping the contentions from the actual party accused of infringement, sealing prevents a defendant from designing around the patent or more importantly, figuring out whether they actually infringe. All this works to encourage defendants to settle the case rather than pay the high costs of fighting. Thus the practice of sealing as many court documents as possible can be part of a strategy to increase costs by adding more bureaucratic red tape to defending against a patent infringement lawsuit.

More importantly, however, improper sealing harms the public. By designating its infringement contentions as confidential the patent holder works to evade one of the primary purposes of public patents: to put the public on notice of what the patentee claims to have invented. That is, instead of abiding by the quid pro quo of the patent system (market exclusivity in exchange for public disclosure of the innovation), the patent holder seemingly gets of the benefits of exclusivity while working to keep the alleged scope of the patent secret.

Furthermore, the practice of unnecessarily sealing court documents is contrary to our public and open judicial system. Even though the case is over between State Farm and Traffic, the general public has an interest in open access to court records and documents: that’s part of our First Amendment guarantees. And for good reason: patent troll litigation strategies and tactics are active topics of public debate. Normally, the public could rely on court records to better understand how patent rights are being used (or abused) in our system. Improperly sealed records deprive the public of a valuable source of information.  And because sealing key court documents has become a trend, of sorts, amongst patent trolls, EFF has moved to intervene so that this behavior doesn’t work to prevent meaningful debate.

The rules put the burden on the parties to justify the sealing of any documents. Unfortunately, too often do the parties’ assertions about confidentiality go unchallenged. EFF hopes that by filing this motion, courts will be more willing to question parties’ assertions that shield documents from the public eye.