Why Secrecy in Patent Cases Is Out of Control — and What to Do About It

In addition to being a senior editor here at Medium, I also sit on the board of directors of the First Amendment Coalition, a nonprofit that litigates free speech and open government access cases on behalf of the press and the public. Normally,our interests focus on municipal and state government issues, often involving the California Public Records Act and the Freedom of Information Act.

More recently, we have become involved in cases of abusive corporate secrecy, where the public has been locked out through questionable legal tactics. I’m talking specifically about the Apple v Samsung patent suit that’s now making its way to the court of appeals. The case represents a lot that’s wrong with the patent system, which I won’t address here; the tech press has covered the case relentlessly.

One thing that hasn’t received enough attention, however, is the casual use of secrecy in such cases that effectively prevents key documents from coming to public view. Patent litigants routinely ask to put their license agreements — which would otherwise wind up in the public record — under seal. These licenses, the parties usually argue, include proprietary and confidential business practices that, if made public, could make them less competitive. Neither side is interested in transparency, since both risk spilling documents into the public domain that they would prefer never see the light of day. The more secrecy, the better. Judges — facing no advocate in the court room on the side of transparency — often rubber stamp these requests, significantly impoverishing the public’s understanding of the proceedings.

Indiscriminate sealing requests, and their routine approval by uncritical judges, is an abuse of the system. It’s time the courts recognized and put a stop to it.

One of the costs of using the courts to settle disputes is the fact that the courts are public institutions. Sealing records is not in itself bad; there are many cases where the public interest is served by keeping certain information private, for example,in criminal cases involving minors. Patent infringement suits do not pass this test. Intellectual property has become a business weapon far removed from the original purpose of protecting inventors from copycats for a period of time that would allow them to build a business around their product, or profit from investment in research.The scale and breadth of patent litigation sweeping the courts globally is unprecedented, and has consequences that touch consumers as much as corporations, potentially limiting their choices in the market on the basis of flimsy and obscure claims. These issues almost never get talked about outside of the patent bar, but they are increasingly important to the public at large.

Now it seems the patent court itself may be warming to a more thorough discussion of the problem. In a notable victory for openness, the Federal Circuit Court of Appeals in Washington, D.C. (which hears all patent appeals) has agreed to let open government activists present arguments later this month in favor of unsealing many of the records in Apple v Samsung. The First Amendment Coalition and the Reporters Committee for Freedom of the Press filed an amicus, or friend of the court, brief seeking more transparency in the case. The federal circuit rarely grants time at oral arguments for amici to speak. Apple and Samsung both opposed the request. Most companies in Silicon Valley, and the entire U.S., both in the tech industry and beyond, would likely oppose. The fact that it has been granted suggests the court takes the transparency issue seriously. The argument is on March 26.

The court’s action is an encouraging sign not only for those who value open access in public institutions including the courts, but anyone concerned with runaway patent litigation. By sealing records without adequate justification, courts allow litigants to have their cake and eat it too, while the public is left in the dark.