Federal Circuit and Sealed Opinions

by Dennis Crouch

The Federal Circuit has been releasing a substantial number of sealed opinions that stem out of confidential briefs.  The Court’s usual operating procedure is to issue the opinion in a sealed form along with an order to show-cause as to what aspects of the opinion (if any) need to remain under seal.

The court’s approach appears to comport well with the requirements under the Defend Trade Secrets Act of 2016 (DTSA). In particular, 18 U.S.C. 1835(b) reads:

(b) Rights Of Trade Secret Owners.—The court may not authorize or direct the disclosure of any information the owner asserts to be a trade secret unless the court allows the owner the opportunity to file a submission under seal that describes the interest of the owner in keeping the information confidential. . . .

In a 2016 essay, I explained that the statute appears designed to “prevents a court from disclosing a trade-secret in its opinion without first providing the trade-secret owner with the opportunity to brief the issue of disclosure.”

I’ll note here that the “rights” defined by Section 1835(b) appear purely procedural — the trade secret owner gets a chance to explain its position in an under-seal filing.  It does not actually prevent the court from subsequently disclosing the alleged trade secret.

Rights of Trade Secret Owners in Federal Cases

3 thoughts on “Federal Circuit and Sealed Opinions

  1. 1

    “We begin by showing that revolving-door examiners grant 12.6-17.6 percent (8.5-11.9 percentage points) more patents to firms that later hire them. This result is robust to varying the level of controls: for example, the inclusion or exclusion of examiner and firm fixed effects”

    link to cato.org

    Without seeing how they correct for ‘examiner effects’, I am suspicious that this is just demonstrating selection bias against examiners with lower grant rates or some subpopulation effect of examiners-who-want-to-clock-two-years-at-the-office-before-starting-a-prosecution-career.

    1. 1.1

      In particular, we observe, for more than one million applications, the name and address of the filing firm, the name and unique identifier of the examiner, the decisions he or she made, and the dates on which they were made”

      “In broad terms, the data links, at the decision level, the individuals setting regulation and the firms affected by that regulation to the individuals hired away from the regulator and firms hiring those individuals.”

      “We find that examiners extend much of the leniency afforded to their future employers to other firms that are nearby. To be indicative of regulatory capture, this approach requires only that examiners’ match-specific preference shocks are independent across locations, rather than across firms. Hence it provides somewhat stronger evidence.”

      “so patents granted by revolving-door examiners to their future and prospective employers should receive fewer citations…. the results here indicate that patents granted to the firm that later hires a revolving-door examiner receive 21-27 percent fewer citations.

      We argue that these results, taken together, suggest regulatory capture.

      Who’s your customer…

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