A Bit More Transparency in Patent Lawsuits

Should patent lawsuits filed in federal courts be hidden from the public? We don’t think so, especially where a patent owner may be suing multiple people based on the same claim. Apart from the general principle that legal processes should be open to the public whenever possible, as a practical matter sealed filings prevent other people under legal threat from the same person from learning information that may be crucial to their own defense.

That’s why we were concerned when we noticed that numerous court filings and at least three court orders were made entirely under seal in a patent case. We contacted the parties to the lawsuit, Audible Magic and Blue Spike, and asked them to file public versions of significant court filings, redacting only information that was truly confidential. Audible Magic quickly agreed to EFF’s request. However, Blue Spike opposed it entirely, forcing EFF to intervene in the case and ask that the court order the filing of public-redacted versions of the sealed filings.

The court granted EFF’s motion to intervene and our motion to unseal. The court ordered Audible Magic and Blue Spike to submit redacted versions of any document a party wished to keep partially sealed. Again, Audible Magic quickly complied. The documents revealed, among other things, that Blue Spike had not created a product it advertised, called the “Giovanni Abstraction Machine,” despite Blue Spike’s public statements indicating otherwise. We also discovered allegations that Blue Spike’s owner, Scott Moskowitz, took the technology that formed the basis of some of Blue Spike’s patents from another company, Muscle Fish, and therefore shouldn’t have gotten those patents in the first place. (The parties settled before trial, thus leaving the question of Moskowitz’s alleged misappropriation, and also the related validity of Blue Spike’s patents, unanswered.)

Blue Spike, however, submitted no redacted versions of any court document. It turned out that Blue Spike had no confidential information whatsoever in the documents it insisted should be kept hidden from public view. Given that Audible Magic had no objection to unsealing, Blue Spike could have simply agreed and this whole dispute could have been avoided. Instead, EFF had to spend significant time and resources to defend the public’s right to an open court process. To hold Blue Spike accountable for wasting the time of the parties and the court, we filed a third motion asking the court to sanction Blue Spike and its attorneys for the costs EFF incurred.

We’re happy to report that the dispute has now been resolved. As part of a settlement, the court has entered a “Consent Order” that will prevent Blue Spike or its attorneys from baselessly opposing motions to intervene and unseal in the future. If Blue Spike or its attorneys, in any case, do baselessly oppose, the court can award attorneys’ fees and costs to the person that moved to intervene and unseal. Separately, Blue Spike and its attorneys agreed to pay EFF a (confidential) sum to compensate for fees and costs.

This is a good result for this case, but the bigger problem persists: secrecy has become second nature in patent cases, and it needs to end. For example, EFF moved to intervene in another case where the patent owner was arguing its theory of how a company infringed was confidential information that couldn’t be filed publicly. In that case, after EFF was initially refused intervention but then allowed on reconsideration, the patent owner abandoned its claim to confidentiality once it was forced to justify its belief.

We’ll keep fighting this battle, but we wouldn’t have to if judges took a stand themselves. The judicial process, in patent cases or otherwise, should be open and not shrouded in secrecy. So while we are happy with the outcome in this case, we will keep urging the judiciary to hold litigants accountable on their own, requiring a strong showing of good case for confidentiality and immediate filing of public versions of briefs. That’s good for the patent system, and good for the public.