Clinic students Emily Ko and Zoe Lee at the Technology Law and Policy Clinic at the NYU School of Law were the principal authors of this post.

Courts are not private forums for business disputes. They are public institutions, and their records belong to the public. But too often, courts forget that and allow for massive over-sealing, especially in patent cases. 

EFF recently discovered another case of this in the Eastern District of Texas, where key court filings about Wi-Fi technology used by billions of people every day were hidden entirely from public view. The public could not see the parties’ arguments about patent ownership, the plaintiff’s standing in court, or licensing obligations tied to standardized technologies.

EFF Seeks to Uncover Sealed Information in Wilus 

The case Wilus Institute of Standards and Technology Inc. v. HP Inc., highlights a recurring transparency problem in patent litigation. 

Wilus claims to own standard essential patents (SEPs) related to Wi-Fi 6 — technology embedded in everyday devices. Wilus sued Samsung and HP for patent infringement. HP argued that Wilus failed to offer licenses on Fair, Reasonable, and Non-Discriminatory (FRAND) terms, which are required to prevent SEP holders from exploiting their position, by blocking fair access to widely used technologies. 

In reviewing the docket, EFF found that many filings were improperly sealed under a lenient protective order without the required, specific justification needed in a proper motion to seal. Because there is a presumption of public access to court filings, litigants must file a motion to seal and demonstrate compelling reasons for secrecy. This typically requires a document-by-document and line-by-line justification. 

In the Eastern District of Texas, that standard is often not enforced. Instead, district judges allow litigants to hide information using boilerplate justification in a protective order without explaining why specific documents or specific parts in a document should be hidden. 

In Wilus, two sets of documents stood out. 

First, Samsung moved to dismiss the case, arguing Wilus may not have validly obtained the patents — raising doubts about whether they had standing to sue at all. Wilus’s opposition to that motion was filed completely under seal, with no redacted public version available at all. That briefing likely addresses the patent assignment agreements that underpin Wilus’s business model — information the public has an interest in, especially in cases involving non-practicing entities (NPEs) like Wilus. 

Second, filings related to HP’s supplemental briefing on FRAND obligations were also sealed in full, with no redacted versions available to the public. Whether Wilus is bound by FRAND has implications far beyond this case. Companies subject to FRAND must adhere to reasonable licensing terms, while those that are not can charge significantly higher licensing fees. 

In both instances, the public was shut out of arguments that bear directly on how essential technologies are licensed and controlled.

EFF Pushes For Public Access 

EFF raised these concerns with Wilus’s counsel and pressed for public access to the sealed records. Wilus ultimately agreed to file redacted versions of several documents now available as Document Numbers 387, 388, and 389. 

That result is progress, but it shouldn’t require outside intervention. Public versions of court filings should be the default, not something negotiated after outside pressure.

Even now, these newly filed redacted versions conceal significant portions of the parties’ arguments. The public still cannot fully see how this case about technologies that are used every day is being litigated. 

Why Public Access Matters 

Sealing court records is designed to be rare. To overcome the presumption of public access, litigants must show compelling reasons for secrecy. That’s because open courts are a distinguishing feature of American democracy. The public, journalists, and policymakers all have the right to observe proceedings and hold both government actors and private litigants accountable. 

Some filings do contain trade secrets or commercially sensitive information. But that doesn’t mean litigants should be able to hide information without explaining why. The Eastern District of Texas allows litigants to bypass the requirement to explain why.

EFF confronted this very same issue in its attempt to intervene in another Eastern District of Texas case, Entropic v. Charter. The same pattern appeared again in Wilus: instead of narrowly tailored redactions supported by specific reasoning, filings were withheld wholesale. 

Courts Must Enforce the Standard

Courts, not third parties, are responsible for protecting the public’s right of access. 

That means enforcing the “compelling reasons” standard, as a matter of course. Parties seeking to seal sensitive information should be required to justify each proposed redaction. The Eastern District of Texas’ current approach falls short. By allowing broad, unsupported sealing through expansive protective orders, it effectively treats judicial records as confidential by default. 

Heavy caseloads don’t change the rule. Administrative burden cannot override constitutional and common law rights. Judicial records are presumptively public. Courts, including the Eastern District of Texas, should enforce that presumption. 

Other Federal Courts Get It Right 

The Eastern District of Texas is an outlier. In the Northern District of California, judges routinely reject overbroad sealing requests. As Judge Chhabria’s Civil Standing Order explains: 

[M]otions to seal . . . are almost always without merit. . . . Federal courts are paid for by the public, and the public has the right to inspect court records, subject only to narrow exceptions. 

The filing party must make a specific showing explaining why each document that it seeks to seal may justifiably be sealed . . . Generic and vague references to “competitive harm” are almost always insufficient justification for sealing. 

This approach reflects the law: sealing must be narrowly tailored and specifically justified.

Court Transparency is Fundamental 

At first glance, secrecy in patent litigation may not seem alarming. But it signals a broader erosion of transparency. The widespread use of expansive protective orders in the Eastern District of Texas is a practice that risks spreading if courts do not enforce the law. 

These practices allow private parties to obscure information about disputes involving technologies that shape modern life. That undermines a core principle of a free society: transparency regarding the actions of powerful actors. 

Courts are not private forums for business disputes. They are public institutions, and their records belong to the public. 

So long as these practices continue, EFF will keep advocating for transparency and working to vindicate the public’s right to access court records.