EFF Asks Federal Appellate Court to Re-hear Important Patent Transparency Case

After pushing for more than three years to access court records in a lawsuit brought by a notorious patent troll, Uniloc, against Apple, EFF is challenging a federal appellate court’s decision that imperils the public’s ability to understand what happens in patent litigation.

The U.S. Court of Appeals for the Federal Circuit overruled the district court’s decision to grant public access to records documenting the legal fight last month. The court ruled that the public had no interest in accessing the records, which contained information about patent licenses. 

We disagree with the ruling, and believe it will close off public access to future patent disputes. That’s why EFF challenged the Federal Circuit’s decision on Friday, petitioning for re-hearing by the panel or the entire court.

Our petition argues that the Federal Circuit’s decision is contrary to law and harmful to the integrity of the judicial system. The records Uniloc is trying to seal were filed with Apple’s motion to dismiss the case—a motion that convinced the district court to do just that. In a prior appeal, the Federal Circuit confirmed that there is a strong presumption of public access to documents filed with this kind of important motion, including some of the same records at issue in this most recent appeal. 

That decision was binding law that the panel in this appeal was obligated to follow. Instead, two of the three judges ignored it and found no presumption or right of public access to these records. The remaining judge wrote a vociferous dissent, emphasizing that the public’s right of access to court records such as these is “sacrosanct,” and explaining why the district court’s decision should stand.

The panel majority reached the opposite conclusion because it failed to apply the legal presumption of public access correctly. Instead of recognizing the central role these records played in the judicial process, the two judges created a new exception based on the type of information the records contain—basic information about Uniloc’s patent licenses.

As our brief argues, that ruling “turned the presumption of public access on its head: instead of treating the public’s right to access dispositive court records as sacrosanct, it sanctified the secrecy of patent licensing information.”

The petition also argues that the panel decision will harm the public’s ability to access court more broadly. “The panel’s legal errors must not be taken lightly: excessive sealing is a pervasive problem in patent cases,” we wrote.

This case highlights the pervasive problem: both Uniloc and Apple—opposing parties in the underlying court fight—agreed with each other to block out the public and keep these records secret.

This posture often leaves the public with no advocate for transparency. And if courts give litigants all the secrecy they desire, the public will not be able to observe, understand, or trust court decisions. 

Public access to court records promotes the integrity of the judicial system. That’s why EFF believes the Federal Circuit’s flawed decision cannot go unchallenged and uncorrected. We hope a majority of the judges on the panel or full court recognize that and intervene. Whatever they do, EFF will continue fighting to protect the public’s right of access to court records and proceedings.