Patents generate profits for private companies, but their power comes from the government, and in this country, the government’s power comes from the people. That means the rights patents confer, regardless of who exercises them, are fundamentally public in nature.

Patent owners have no right to keep their patents rights secret. The whole point of the patent system is to encourage people to disclose information about their inventions to the public by giving certain exclusive rights to those who do. But that doesn’t stop private companies from trying to keep information about their patents secret—even when their disputes to go court, where the public has a right to know what happens.

A recent decision by a federal court in a long-running transparency push by EFF affirmed the public’s right to access important information about a patent dispute. For more than two years, we have been working to vindicate the public’s right of access to important sealed court documents in Uniloc v. Apple. The sealed documents supported Apple’s argument that the case should be dismissed because Uniloc lost ownership of the patents when it sued Apple, and thus lost the right to bring the suit. But as filed, the documents were so heavily redacted that it was impossible to understand them. So EFF intervened to oppose the sealing requests on the public’s behalf—and we won. When Uniloc asked for reconsideration, the court refused—and we won again. When Uniloc appealed, the Federal Circuit overwhelmingly upheld the district court’s decision—and for the third time, we won.

EFF hoped that the string of victories would mark the end of our intervention and that the parties would promptly file properly-redacted documents as required at last. But they did not do so.

In October 2020, after more than three months had passed since the Federal Circuit’s ruling, we discovered Apple had filed a new motion to dismiss against Uniloc. Again, the motion and exhibits were so heavily redacted that it was impossible to know what Apple’s argument for dismissal was. So EFF moved to intervene, challenging Uniloc’s failure to comply with the Federal Circuit’s ruling as well as its new failure to submit proper sealing requests. The district court agreed, and for the fourth time, we won.

That EFF had to intervene underscores the problem of excessive sealing in patent cases between private companies. No matter how much they disagree on other issues, otherwise-warring sides often have a mutual interest in wanting to keep information about the litigation secret. When that happens, both sides are motivated to make excessive requests to seal court records—but not to oppose them. If there’s no opposition, there’s no guarantee a judge will weigh the request against the public’s right of access. To make sure that happens, EFF often intervenes in patent cases to vindicate the public’s access rights.

In its December 2020 decision, the district court did not mince words, excoriating both parties for their casual attitude toward the public’s right of access. The court emphasized the perils of “collusive oversealing,” which happens in cases such as this where “both parties seek to seal more information than they have any right to and so do not police each other’s indiscretion.” Although Apple did not request secrecy, it had ample opportunity to challenge Uniloc’s sealing requests, but “opted instead to grab its December 4 victory on the standing issue and head for the hills.” Seeing Apple and Uniloc’s mutual interest in secrecy, the court realized that “[w]ithout EFF, the public’s right of access will have no advocate,” and granted our motion for intervention with thanks.

The court then denied all of Uniloc’s sealing requests—including the requests to seal the names and amounts paid by Uniloc’s licensees. In doing so, the court emphasized the public’s right to information about U.S. patents in addition to the right to access court records. As it explained: “a patent is a public grant of rights. . . . The public has every right to account for all its tenants, all its sub-tenants, and (more broadly) anyone holding even a slice of the public grant.” It also emphasized the public’s “interest in inspecting the valuation of the patent rights . . . particularly given secrecy so often plays to the patentee’s advantage in forcing bloated royalties.” We commend the court for recognizing the gravity of the public’s right—and need—for information about the ownership, licensing, and valuation of U.S. patents.

We hoped this victory would convince Uniloc to admit defeat and change its sealing practices, but it has decided to appeal its loss to the Federal Circuit again. EFF’s fight for access to Uniloc’s licensing secrets will continue. In the meantime, we hope this decision will encourage judges and litigants to enforce the public’s right of access, especially when the adversarial process collapses.


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