Fight to Make Documents Public Continues

In December, 2014, EFF asked a court to allow it to intervene in a patent case so that we could formally request that certain documents in the court record be unsealed and made available to the public. Yesterday, EFF’s motion to intervene was granted. Our motion to unseal is now pending.

It has been a long road to get even this minor victory. EFF asked the court for permission to intervene almost 1.5 years ago. In a July 2015 order, the court denied EFF’s motion, finding it moot in light of the fact that it decided to unseal some (but not all) documents. We objected to that order last August, and yesterday, the Court reversed itself and allowed EFF to intervene.

This is only a first step in getting the information that the public is almost surely entitled to receive. The patent owner is being given the opportunity to oppose our motion to unseal, and the Court will then have to rule on the issue. In the meantime, the document EFF is seeking to make public—the patent owner’s legal arguments as to why defendant State Farm infringed—is still not public. (State Farm previously told the court that no confidential information about its products is found in the document and that it thinks it should be public.)

Document sealing is a major problem in patent lawsuits. Parties routinely seal everything and anything, possibly because that is simply easier for them. Although EFF understands that certain material may be properly kept from public view, too often we see everything sealed without good reason. This practice frustrates the public’s First Amendment right to access court proceedings. Moreover, as this case proves, it effectively places a burden on the public if they want to exercise this right.

EFF has put significant time and effort into getting this one document in one case unsealed. Unfortunately, it is just one of countless documents that are routinely sealed without good reason in patent cases around the country. Just last week we asked the court in a different patent case to unseal documents that almost surely should not have been completely hidden from public view.

As we wrote when we originally filed our first motion in 2014, improper 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 in this case, sealing prevents the public from understanding what the patent owner believes it owns, thereby preventing the public from designing around the patent or more importantly, figuring out whether they are at risk of a patent lawsuit.

Neither EFF nor the public should have to expend significant time and effort to access court documents as courts are presumptively open. We hope through our publicity of this issue we can help the courts, the parties, and the public better understand how oversealing is harmful.