Refusing to Seal: Should Patent Ownership and Licenses be Public Information?

Uniloc 2017 v. Apple (Fed. Cir. 2019) (appeal pending)

As in most patent cases, the parties to this litigation stipulated to a fairly tight protective order that was entered by Judge Alsup. Many of the documents filed in the case were filed under seal, including elements of the motion to dismiss for lack of standing (arguing that the plaintiff doesn’t actually own the patent).

However, in January 2019, the Electronic Frontier Foundation (“EFF”) moved to intervene and request unsealing of the parties various briefs and documents “for the limited purpose of vindicating the public’s right to access court records.”  EFF explained:

Defendant Apple has filed a dispositive motion asking the Court to dismiss this case on the basis of lack of subject matter jurisdiction. But page after page of the public briefing relating to that motion is hidden behind redactions. The public has no access to the underlying facts. Even lengthy sections of the legal argument are redacted, leaving the public with no way to understand the dispute. This conflicts with the public’s common law and First Amendment right of access.

The Ninth Circuit has held that “compelling reasons,” are required to seal documents used in dispositive motions. . . . While all court proceedings are presumptively open, the public interest in patent disputes is particularly strong because patents potentially govern the conduct of anyone who wants to make, use, or sell the claimed inventions. Thus, the public has an interest in knowing who owns, or might claim rights to enforce, a patent. Plaintiffs in this case appear determined to hide such facts from the public. But Plaintiffs’ desire to confound the public cannot trump the public’s First Amendment right of access. The Court should deny the motions to seal and ensure access to court records.

[EFFMotion] In response, Judge Alsup denied the motion to seal documents — holding that the parties had failed to provide compelling reasons to justify sealing and that generalized assertions of “potential competitive harm” are insufficient to outweight the public’s right to know. [DenialOfMotionToSeal]

Although Judge Alsup agreed to unseal the documents, he also granted a stay of deadlines pending appeal. Thus, the question of sealing is now pending before the Federal Circuit.  Meanwhile, Uniloc has agreed that it was initially overzealous in its approach to sealing documents (offering to unseal 90% of the materials originally filed under seal), but also argues that the court should particularly avoid unsealing a a document that includes “a table of the 109 of licenses Uniloc entered into between 2010 and mid-2017 [that] identifies the licensee, the date of the license, the amount paid and the license type for each license.”  According to Uniloc, the names of patent licensees and their payments are rightfully kept confidential. [Uniloc2017AppealBrief]

[To be updated as EFF and Apple weigh in].

 

 

36 thoughts on “Refusing to Seal: Should Patent Ownership and Licenses be Public Information?

  1. 9

    It’s weird that the EFF used to be known as the Electronic FREEDOM Foundation. I guess they don’t believe in freedom anymore, only frontiers.

  2. 8

    4th try to post this:
    Disclosure of prior licenses as being “litigation escape” settlements for less than the cost of litigation for defendants, or not, is particularly publicly and judicially useful. But an even stronger argument against over-broad protective orders issued in patent litigation is where they suppress public knowledge of invalidating prior art or other defects in asserted patents, so that the patent can continue to be asserted against others.

  3. 7

    The President of the United States is a path0 gical liar who surrounds himself with liars and who is the leader of a party of liars.

    What does mean for appointees like Fraud Iancu, who is also a liar (and incompetent to boot)? Why should anyone care about “patents” if they are handed out by a patent office headed by a liar, and appointed by a liar?

    Because these liars are going to use force against infringers?

    Bring it on.

    1. 7.1

      Where is this “use force against Infringers” coming from, 0h Internet Tough Guy, you?

        1. 7.1.1.1

          lyin’ ted.

    2. 7.2

      Does anyone know if Donald Trump plays any stringed instruments?

      Maybe a fiddle?

      1. 7.2.1

        As I recall he likes to lie, watch Faux News, defraud people, golf, lie, and he likes to pay prostitutes to have sex with him. But thank goodness he never used less than stellar email management practices.

    1. 6.1

      Ah bother, I messed up my brackets. Let’s try this again…

      Guess who?

      1. 6.1.1

        That’s actually somewhat humorous Greg.

      2. 6.1.2

        “H ate is sometimes as mysterious as love…”

        Actually that form of h ate is just another form of lurve.

        1. 6.1.2.1

          Definitely more recognized in how Malcolm treats Gene Quinn…

          1. 6.1.2.1.1

            Everybody treats Big Jeans like a giant dog t-u-r-d because that’s what he is.

            He’s also a Repu k k ke, of course.

            1. 6.1.2.1.1.1

              Your 1ust for him is noted.

  4. 5

    Because Bildo still struggles with the basics, it’s time to point out the patent maximalist mouth breathers out there that “efficient infringement” is just another word for “rational business decision.” Quit whining like the little babymen that you are.

    Glibertarians are the world’s least intelligent hypocrites, and glibertarians who support patent maximalism are transparently disgusting pig people on top of the hypocrisy. Go away. Crawl back under your rocks and fondle your guns, c-r-e-e-p-s.

    1. 5.1

      Your cognitive dissonance is noted (and really calls into question your assertion that you are an actual patent attorney who (gasp) works to secure patent rights for clients to protect their innovation).

      1. 5.1.1

        News flash: my clients live in the same world with other patent-holders.

        Of course, my clients also actually make and sell things.

        Let’s see if Bildo can connect the dots here and understand why the positions of patent maximalists and quintessential patent tr 0ll types are mostly identical. And remember, folks: Bildo studiously avoids ever stating that any patent is junk, no matter how junky that patent is. But he’s a very serious person! Totally not just a sycophant reciting a script and generally being wrong about everything.

        1. 5.1.1.1

          …? As if “make and sell things” affects what a patent right IS.

          Your “position” is simply at odds against a strong patent system.

          The rest of your nonsense is merely more of your ill-aimed ad hominem (including yet another dose of Accuse Others, seeing that your posts are far more easily categorized as “script” — as was shown back in the DISQUS days when posts by a “contributor” could be colocated and seen all at once.

          Which is what prompted you to select the “super secret” setting then.

          1. 5.1.1.1.1

            As if “make and sell things” affects what a patent right IS

            Again, it’s 2019. You lost this fight a long time ago, to the extent there ever was any dispute about it. And the next step in the progress of the patent system will only be to increase the degree to which “making and selling things” positively impacts one’s “patent right”.

            You are free to deny the nose on your face, if you like. The fact is that the public will only take so many whiffs of your peculiar stench, Bildo. Sure, there’s that baseline of 30% who will put up with everything if you add some bacon bits and deep fry it. But most of us will kick you in the face if you demand that we bend over because of precious “patent”. This isn’t “cognitive dissonance”. This is just normal reasonable people like me telling entitled self-absorbed glibertarian j@ ck-offs like you to go s–k it.

            [shrugs]

            1. 5.1.1.1.1.1

              Again, it’s 2019.

              You say that as if a bedrock fundamental principle of patent law somehow does not exist ‘because it’s 2019.’

              Wake up son.

              (and yes, it IS cognitive dissonance that you revolt at the basic — and I do mean basic — aspects of what a patent means)

              That you go into conniptions and act like your usual Trump self only confirms this.

  5. 4

    Anyone sued on these patents is going to be able to get prior licensing details from the patent owner because that information is needed for the Fed. Cir. “Georgia-Pacific” damages calculation tests. [It should logically also be available by discovery early in litigation for settlement negotiations and encouraging litigation settlements.] But, that does not answer the fully public access question.

  6. 3

    Didn’t Uniloc also have to assert that those patent licensees are all bound by a confidentiality agreement as to their licenses? Otherwise they are not trade secrets.

    1. 3.1

      Fair point, Paul. A quick read of the brief indicates merely that Uniloc is asserting that these items are the type of items that have been considered Trade Secrets (in other cases, where in those other cases, these items may well have been Trade Secrets).

      Caveat: I did not read through the entire brief.

  7. 2

    Let’s differentiate between what is IN a patent (the ‘stuff’ that may actually affect the public, and which has ALWAYS been public knowledge) and the (purely) ancillary WHO OWNS that “what” (which — like anything else that is [Legislatively Directed] PERSONAL property — is, well, NOYGDB).

    There is an underlying thrust from the Efficient InFringer Front as to just WHY they are soooo interested in the “who” when they already have the “what” — and it is expressly NOT for any “public benefit.”

    1. 2.1

      The owners and licensees of patents are very much “my business”.

      Unlike normal “personal property”, the patent affects my life by limiting what I can do (legally). Of course I have a right to know who is in control. And for the same reason, everyone has an interested in knowing who controls what.

      Glibertarians are hilarious. You want me to keep my nose out of your business? Then go hide in your bunker, fondle your guns, stay out of the patent system, and S-T-F-U.

      1. 2.1.1

        You have NO such right – and that is the crux of the point here. You have a right to the “what,” and NOT to the “who.”

        The “what” is every bit ALL that you need in order to address your concerns.

        As to your last paragraph, just more of your nonsense one-bucketing mis-aimed and mindless ad hominem. How ‘shocking.’

        1. 2.1.1.1

          This is another fight you are guaranteed to lose, Bildo. Kinda funny to watch you flail away, though.

          1. 2.1.1.1.1

            LOL – your Accuse Others meme at play again, as I am not the one flailing here.

            The onus is on you to show (with cogent reasoning) WHY more than the “what” is oh so needed, and would reach to the “who.”

            Mind you – this is on a level well above Paul’s comment above, so while PauL may have provided a cogent position for some cases, such does NOT support your rant.

            1. 2.1.1.1.1.1

              The onus is on you to show (with cogent reasoning) WHY more than the “what” is oh so needed

              You act as if knowledge of ownership/license status of a patent is some sort of incredibly burdensome and hurtful thing for the owner. It’s not.

              Public accessibility to that sort of thing is pretty much a given. The public needs the information to make sure that the system isn’t being abused, and the public needs the information so the public can understand how and why certain patents are being obtained and licensed. There’s your reason. Done. Thanks for playing, Bildo!

              The idea that “patents are just like other personal property” was d.o.a. when you and your tr0 lls used to lather yourselves up here ten years ago. In 2019 it’s just a j0 ke. Like you.

              1. 2.1.1.1.1.1.1

                Your feelings — and lack of a cogent (let alone compelling) argument are noted.

        2. 2.1.1.2

          You are both missing a key point.

          So long as the patent owner(s) and licensee(s) operate in their own private sphere, then it is not the public’s business.

          But once these issues are litigated before a court as part of an infringement case, then the public DOES have the right to know. Courts are public institutions funded by the taxpayers. They wield huge power, and the public is entitled to scrutinize their actions and whether they are doing their job well or poorly. The only way to do that is to understand the substance of what was before them and what they decided. That is inhibited when you have massively redacted papers.

          (This is, of course, not unique to patent cases. The decision here did not rest on patent law, it rested on general principles of access to court papers, which the Supreme Court has held on repeated occassions. )

          1. 2.1.1.2.1

            BL,

            The “what” I have no problem with – I am not missing that point at all.

            It is the ancillary “who” (as in, who owns) that MAY (or may not) be something that is “MUST BE KNOWN BY ALL” type of thing. Note as well, that I have given credit to Paul’s comment on a particular instance wherein a party may have that “MUST BE KNOWN” (but such may – or may not – extend to a type of “BY ALL”).

            And certainly you are correct in that this is by no means unique to patent cases.

    2. 2.2

      the Efficient InFringer Front

      “Waaah! Waaaah! Watch out or I’m going to sue you for defamation!” <—- Bildo's maximalist buddies when the shoe is on the other foot

      1. 2.2.1

        Your “one-bucketing” and plainly incorrect characterization is noted.

  8. 1

    About time a judge scared patents litigants out of their attempts to redact their filings to the point of providing the public with no information.

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