Guest Post by Professor Bernard Chao
Last year, I wrote about the problem of courts that injudiciously seal records in patent cases. See Bernard Chao, Not So Confidential: A Call for Restraint in Sealing Court Records, 2011 Patently-O Patent L.J. 6. In that essay, I explained how allowing access to court records is important because it teaches the public about our legal system. This in turn provides an important check on the law. Public outcry over unjust decisions can often lead to legislative or judicial reform.
Unfortunately, this problem has raised its ugly head again in the high profile Monsanto v. DuPont patent case. This case has made headlines because Monsanto has recovered $1 billion in damages even though DuPont has never even been accused of selling any seeds that infringe Monsanto’s patent for genetically modified Roundup Ready soybeans. Rather, the infringement is based on some Roundup Ready soybeans that the defendants developed but did not sell and the award appears to be based on the royalties that DuPont would have paid had it negotiated a license ahead of time. I use “appears” because Monsanto’s damages theory is hidden from the public view.
I have previously written on patent damages and was puzzled by how DuPont could be liable for $1 billion when it did not actually sell any infringing seeds. Consequently, I went to the case’s docket in the Eastern District of Missouri hoping to learn about Monsanto’s damages theory. There are several entries that might explain the theory that led to a $1 billion verdict. For example, DuPont filed a motion to exclude the opinions of Monsanto’s damages expert, Michael Keeley. Of course Monsanto filed a response and DuPont replied. These briefs and their exhibits were filed entirely under seal. In other words, there is no public redacted version of any of these documents. What’s more there is nothing in the docket that shows how the district court ruled on the DuPont’s motion. Even if the court’s ruling were in the docket, it probably would not have been available. Other docket entries show that the court has regularly sealed many of its other rulings including decisions on several motions for partial summary judgments, a motion to compel and a motion to strike. In other words, there is no way to understand many of the basic theories underlying Monsanto’s case and Dupont’s defenses.
Now you don’t need to read all the press coverage to understand that Monsanto v. DuPont is one of the most important cases in patent law. There appears to be a novel damages theory that led to $1 billion verdict. There are likely issues of first impression that relate to patents on genetically modified organisms. Indeed, the outcome has important ramifications for agribusiness generally. Yet, the critical court records are under seal and everyone is left in the dark. I won’t repeat my entire argument here. But, I will repeat my plea. At a minimum, the court should force parties in patent cases to file public versions of their briefs. They can leave out their profit margins and trade secrets. We don’t care about such things. But the public needs to know the basic facts and theories underlying these cases. Similarly, to the extent that courts seal their decisions, they need to publish public versions that explain the reasoning underlying their rulings.
Partial transcript posted on PACER in doc 1550 doc 1550 filed 7/31/2012
So getting the trial transcripts is not that easy. They have not been released on the electronic filing system and the current entry lists deadlines for “redaction requests.” That suggests that the trial record may also be partially sealed. I would also point out that many cases settle for trial so that the only public record are the briefs.
Finally, I have requested trial transcripts from both Monsanto and DuPont’s attorneys.
That’s what one should do before complaining about sealed motions etc.
Or else what?
Yes, getting the trial transcripts and exhibits is easy, assuming the court room was not sealed during trial. That’s what one should do before complaining about sealed motions etc. Judges often allow sealed documents to be filed during trial, but once trial comes, it’s generally open to the public.
There is a portion of the transcript that is public that could be of interest, posted by DuPont as a appendix during the trial. I think it shows a cross of the patent prosecutor.
I agree with this. Bernard and I were working on a system for doing this, but I have not followed through in any significant way. Might as well.
How about it, Dennis?
That’s not nearly so useful as the actual breifs that lay out the legal positions and rationale.
for a viewpoint that differs from the Monsanto court’s …
link to rcfp.org
Can’t you review the trial transcripts and see what evidence and argument was presented?
“They can leave out their profit margins and trade secrets. We don’t care about such things.”
A friendly amendment: We care about such things, but we can understand the reasons for their redaction.
The district judge is not doing his job. There is a whole line of cases that say that there is a First Amendment right to access to court documents, including documents filed in a case in support of a motion or trial position. Sealing them requires a compelling showing.
If you are really interested and have time and money (hah hah), you can move to intervene to unseal the records.
Willful patent infringement isn’t visible wrongdoing?
Perhaps. We just don’t know, and can’t find out.
Or can we?
Thanks for the post, Prof. Chao. I follow the Monsanto cases in N. America because I use them when teaching political science. I am struck by the rationale behind some of Monsanto’s wins, and hope that the basis of this questionable award comes to light.
Maybe there is no blame to be had?
Companies accused of Patent Infringement CA hire us to analyze the asserted patents and the accused technology and formulate non-infringement and invalidity theories.
What else is an aware jury supposed to do, in a dispute between two parties for both of which 1B USD is just chump change? By “aware” I mean “aware of such damages awards as the one against McDonalds for serving its coffee too hot”.
Perhaps the jury just lost sight of the difference between the quantum that would have been fair compensation for the directly attributable damage, and the quantum that would have taught the global titan a lesson.
Is it really the jury to blame? How did the jury instructions read? Should the court have given the jury clearer instructions?
Visibility is something the jury had. One has to wonder indeed what was invisible to the public that was ‘egregious’ enough for 12 men and women to arrive at that billion dollar number (and that the parties demanded to be sealed). I have to wonder exactly what was the guilty party actually doing.)
Someone should make a motion to unseal. Patently-o or another media organization would be good candidates.
(…or, rather, Professor Chao. Credit where due.)
Great post, Dennis. It’s troubling that a company that hasn’t committed any visible wrongdoing can be liable for $1 billion in damages. Certainly raises some questions about how companies protect themselves from gigantic patent infringement verdicts.
hear hear
I feel like some of this will come out once the case goes up on appeal, just because something will have to come out in any opinion on damages. You know, unless they reverse on claim construction or some other liability issue.
the public needs to know the basic facts and theories underlying these cases. Similarly, to the extent that courts seal their decisions, they need to publish public versions that explain the reasoning underlying their rulings.
Agreed. Any arguments for suppressing the above-identified information is particularly weak in the patent context.
Agree completely Dennis.
Is there a way we could look to (contacting) the jurists for such insight/answers? Aren’t they free to speak once the trial’s over?
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