Patents Are About Sharing Information with the Public. Don’t Shroud Them in Secrecy.

Patents give their owners the power to stop people (and companies) from doing whatever the patent claims as an “invention” for twenty years. But that power doesn’t come for free: it’s a trade. In exchange for the right to sue others to stop using the invention, patent applicants have to disclose enough information about their invention to allow others in the field to make and use it. Encouraging people to share information so that others can use it to make further advances is the whole point of the patent system.  

The public can read the information in a patent from the moment it’s published. But for the twenty years of a patent’s term, the owner can sue anyone who uses their invention without their permission. To get permission, members of the public need to know who owns the patent and therefore has the power to control and demand payment for its use. Unfortunately, essential information about patent ownership is often out of the public’s reach. In particular, patent trolls—individuals or companies that make money by threatening to sue instead of developing or commercializing technology—often divide up patent rights between different entities in ways that make it practically impossible to identify the legal owner of a patent. A 2012 study found that notorious patent troll Intellectual Ventures divides its portfolio among over 1000 different shell companies. There are a number of reasons why patent owners might want to keep ownership information secret. For example, doing so might limit fee awards for bad litigation conduct to an entity with no assets, shielding its parent company from the full price of overly aggressive patent enforcement.

Legal documents—primarily, ownership and license agreements—determine whether someone has the right to sue others for infringing a patent. The legal owner of a patent is the only one with the power to exercise the exclusive rights the federal government granted through its issuance. Legal documents that determine patent ownership affect the public’s rights and obligations directly; therefore, they should be available to the public, just like any law or regulation affecting the public.

EFF has long stood up for the principal that public legal information should be available to the public. For example, EFF is representing Public Resource in a fight against copyright holders seeking to limit the public’s access to documents containing technical standards that have been incorporated into law, and therefore determine what the public can and cannot do. We celebrated last year when Congress passed a law making Congressional Research Service reports—reports produced for Congress that directly affect its lawmaking decisions—available to the public.

The fact that patent owners are trying to keep information secret shouldn’t be surprising. EFF has fought repeatedly for the public’s ability to access court documents in patent cases. Too often, patent litigants are able to keep important information affecting the public secret during litigation by asking to file documents under seal. Since the parties on both sides tend to prefer excess secrecy to excess transparency, they rarely challenge each other’s sealing requests. Given the number of disputes judges generally have to resolve at a given time, many (but not all) are inclined to grant unopposed sealing requests instead of digging into the weeds of their own volition.

Given the need for more transparency in patent litigation, EFF routinely monitors court dockets in patent cases. In 2018, we discovered that one of the most active patent trolls in the world, Uniloc, was asking a federal court to keep information about its patent ownership hidden from the public even after that information had been filed with the court, and should therefore have been available to the public.  

In 2017, Uniloc filed a wave of patent litigation against Apple and other defendants. In some of those cases, Apple moved to dismiss on the basis that Uniloc does not actually own the patents it is asserting and has no right to sue anyone for using them. But when EFF tried to read Apple’s motion, it found that almost all of Apple’s motion to dismiss was redacted and that all exhibits attached to it were filed under seal. All it could tell was that Apple was arguing that Uniloc had divided up its patent rights in a way that deprived Uniloc of the ownership rights required to bring suit. Uniloc’s aggressive enforcement of its patents gives the public an overwhelming interest in the basic facts about the ownership of Uniloc’s patents. So when EFF discovered the amount of secrecy Uniloc was seeking, it moved to intervene in opposition to Uniloc’s sealing requests on behalf of the public.

At a hearing, the district court judge called out Uniloc’s wildly improper sealing requests, denied all of the sealing requests, and gave Uniloc a short time to appeal before making the documents public. We hoped that would change Uniloc’s approach to sealing, and afterwards, the company did file public versions of some of the sealed documents. But it still sought to hide information that there was no basis to seal, like the names of companies they had licensed. So EFF renewed its motion to intervene and opposed Uniloc’s motion for reconsideration. Two days before the argument on that motion was set to take place, Judge Alsup sent down an order that, again, denied Uniloc’s sealing requests.

Uniloc has appealed that ruling to the Federal Circuit, and EFF has intervened to defend it. Apple too has filed a brief seeking to defend the district court’s decision on narrower grounds. In its opening brief, Uniloc argues that the default rule of public access applies only to court documents that are “relevant to understanding” the court’s decision. But that is not the law: here, the public is presumed to have access to all court filings as long as they are “more than tangentially related” to the merits of the case.

Uniloc’s approach turns the presumption of public access on its head by taking the burden of justifying secrecy in U.S. courts off the shoulders of the party seeking secrecy, and instead forcing the public to justify its request to apply the default rule. This approach is also fundamentally unfair. The public cannot see documents under seal; the party litigants can, and therefore have all the information they need to explain why secrecy is necessary. They should be the ones to do so—not the public, which would otherwise have to prove the relevance of what it cannot see.

As our brief argues, the presumption of public access to court records and proceedings is fundamental to our court system and our representative government. The effect of letting patent owners like Uniloc chip away at that default rule will not be limited to patent cases; a decision endorsing its unreasonable sealing requests will be fodder for litigants in any kind of case to seek more secrecy than ever. That will undermine the transparency our public institutions—including courts and the patent office—need to remain accountable to the public.

EFF is proud to celebrate Open Access Week 2019.