Much of EFF’s transparency work centers around government activities in the executive and legislative branches. But transparency in the courts is also important. That’s why yesterday we sent a letter to the U.S. Court of Appeals for the Federal Circuit asking for greater free public access to orders issued by the court.
Previously, the Federal Circuit issued many of its orders for free on its website. They were not necessarily easy to search, but it was at least possible to search by party name or download all orders they issued. But at the end of 2014, the Federal Circuit announced a new policy. Instead of publishing most orders, the Federal Circuit would only publish “selected” orders. (To be clear, PACER is still available, but it is notoriously difficult to navigate and charges both to search and download information. We’re not fans of PACER.)
Unfortunately, “selected” orders seems to mean “few if any” orders. Since the new policy went into effect, only 6 orders have been made freely available (compare that to the quarter from July 1, 2014 to September 30, 2014, where the Federal Circuit published over 180 orders).
We’re concerned that the new Federal Circuit practice is limiting the availability of the public to understand how our courts work. The Federal Circuit hears all appeals in patent cases so its recent practice is especially disappointing since it comes at a time when interest in patent law, and possible reform, is very high.
Parties before the courts sometimes demand too much secrecy. We’ve seen this tactic from patent trolls and are currently seeking to unseal some documents in a case in the Eastern District of Texas. (Our motion there is pending.) But we would hope the Courts themselves would work to increase information available to the public, not limit it.
EFF supports reform of the patent system, but regardless of where people stand on that issue, we hope they will support us in our desire to make the courts more open and available to the public. Our full letter to the Chief Judge and the Advisory Council is available here. Our letter was joined by Dennis Crouch, Associate Professor at the University of Missouri School of Law, and editor/author of the popular patent law blog Patently-O.com.