Our Fight To Prevent Patent Suits From Being Shrouded in Secrecy

Aaron Mackey & Alex Moss | April 25, 2022

This post also is also available on EFF’s website.

The public has a right to know what happens when companies litigate in publicly funded courts. Unfortunately, when it comes to patent cases, companies routinely ignore the public’s rights—for example, by filing entire documents under seal without making any attempt to justify that much secrecy. Even when courts have specific rules requiring justification for sealing requests and publicly filing redacted versions of sealed documents, parties can often defy them without consequence.

That’s why EFF, along with the Public Interest Patent Law Institute, and the assistance of Columbia Law School’s Science, Health, and Information Clinic has filed a motion to intervene and unseal documents in a patent case, Uniloc v. Google, in the Eastern District of Texas. When Google filed a motion to dismiss the lawsuit, the parties filed their briefs and documentary exhibits entirely under seal, keeping even basic facts about those documents (like their length) secret. Worse, the parties did not file any sealing motions or make any other attempt to justify their excessive sealing requests. This conduct violated the public’s access rights under the Constitution and common law as well as the standing order of the presiding judge, Judge Rodney Gilstrap. It also undermines earlier efforts by EFF to ensure greater transparency in patent cases in this Texas federal court, which has one of the largest dockets of patent cases in the country.

These sealed documents are important: they go to whether Uniloc has a legal right, known as standing, to bring lawsuits based on these patents. As one of the country’s most prolific patent litigants, Uniloc’s right to sue affects the freedom of countless technology makers and users.

Many of the documents that Uniloc filed under seal in Texas were already unsealed in another case—yet in Texas, they remain sealed in their entirety. There is no justification for that. Once information is public, it cannot be sealed. Hoping the parties would recognize that as well, EFF and PIPLI asked Google and Uniloc to unseal those already public records and to file motions to seal any information they could justify keeping sealed.

Google and Uniloc refused. So we’re asking the federal court to order them to unseal these materials.

This case is important for another reason: It appears that many companies litigating in this district court are ignoring the Constitution, common law, and the court’s own standing order. Those rules require them to justify any sealing requests and file redacted versions of the sealed material on the public docket. Google and Uniloc did not attempt to justify their sealing requests or even ask the court’s permission before making all of their filings secret. Instead, they appear to believe a private agreement governing the exchange of documents in litigation, known as a protective order, gives them a free pass to file material under seal without showing any cause. But private parties cannot violate the public’s right to access federal court records by entering into a secrecy agreement.

Crucially, the misuse of protective orders is not unique to this case. It is rooted in misinterpretation of the model protective order used for all patent cases in the district. And Uniloc and Google are not alone in reading this model order incorrectly. Patent litigants in the Eastern District of Texas routinely file documents under seal without making any showing of cause. That’s unlawful and shields the public from activities occurring in courts that they fund. EFF and PIPLI intervened in this case to stop patent litigants in the district from using the model protective order to trump the public’s right to access court records.

We hope that in filing this motion to intervene and unseal, we can help the public learn more about the issues in this case and vindicate its right to access court records in patent cases going forward.

EFF and PIPLI would like to thank Columbia University law students Caleb Monaghan and David Ratnoff, along with Associate Professor of Clinical Law Chris Morten, for their work on the case.