by Dennis Crouch
The Federal Circuit has dismissed an appeal by the Electronic Frontier Foundation (EFF) seeking to unseal summary judgment briefing in a patent dispute involving standard-essential patents for cable modem technology. Entropic Communications, LLC v. Charter Communications, Inc., No. 24-1896 (Fed. Cir. Dec. 17, 2025) (nonprecedential). The CAFed held that the district court did not abuse its discretion in denying EFF’s motion for permissive intervention as untimely under Fifth Circuit law. Because EFF could not establish a right to intervene, the Federal Circuit concluded it lacked jurisdiction to address the substantive question that had drawn significant amicus attention: whether courts may seal judicial records based solely on the parties’ designation of materials as confidential under a stipulated protective order.
In the case, Charter raised a defense based on licensing commitments associated with the Data Over Cable Service Interface Specification (DOCSIS) standard, arguing that Entropic’s patents were standard-essential and therefore encumbered by FRAND licensing obligations. The parties filed extensive summary judgment briefing on this issue, with most materials filed under seal pursuant to a protective order the court had entered. According to EFF, more than 40% of Entropic’s opening summary judgment brief and 76% of Charter’s response were redacted in the public versions. The magistrate judge’s report and recommendation, which was filed publicly without redaction, recommended granting Charter’s license defense. The district court adopted that recommendation, and the parties promptly settled. EFF moved to intervene three months later, seeking to unseal the briefing so the public could understand how courts resolve disputes over standard-essential patent licensing.
Under Fifth Circuit law, permissive intervention under Federal Rule of Civil Procedure 24(b) is “wholly discretionary” — offering almost no chance on appeal. The would-be intervenor is effectively relegated to amicus status.
Judge Gilstrap found EFF’s motion untimely and denied intervention. The critical question was when EFF knew or should have known that its interest in public access would not be protected by the parties. The district court determined that EFF, given its expressed interest in the DOCSIS licensing issue, likely followed the case and would have known by October 11, 2023 (when summary judgment briefing was complete) that the sealed materials would remain sealed absent intervention, and found EFF’s March 2024 motion came too late.
I see this sort of public-access intervention as unique. EFF is intervening in order to ensure transparency of our court system. Effectively FOIA for the courts. Writing for the panel, Judge Bryson rejected this idea and instead concluded that public access intervenors receive more lenient treatment than other permissive intervenors.
I listened in on oral arguments, and Judge Bryson appeared particularly concerned about the substantive sealing practices even as he recognized the procedural obstacles. He pressed Charter’s counsel on whether protective order coverage could automatically justify sealing materials filed with the court. Charter conceded it could not. The two standards are different and sealing requires independent justification. Judge Bryson observed that many district judges use a process where parties file under seal initially and then submit redacted versions, with the court reviewing the redactions for propriety. But he distinguished this practice from treating protective order designations as dispositive of the sealing question. Charter’s counsel agreed with this distinction but argued the parties had followed local rules and should not be penalized for compliance.
This exchange highlights the substantive question the Federal Circuit refused to reach: whether Judge Gilstrap’s local rules permit an end-run around requirements for sealing judicial records. The district court interpreted entry of a blanket protective order as providing authorization to file documents under seal. But, this conflates the “good cause” standard for protective orders governing discovery with the “compelling reasons” standard required to seal judicial records. This is an error previously identified by courts. See, e.g., Binh Hoa Le v. Exeter Finance Corp., 990 F.3d 410 (5th Cir. 2021).
Sidebar: Protective Orders vs. Sealing Orders Federal Rule 26(c) allows courts to enter protective orders limiting disclosure of discovery materials upon a showing of "good cause." This relatively lenient standard protects parties during litigation - but generally only applies to information being exchanged between the parties (or third parties). Sealing judicial records filed with the court requires a higher showing. Under the common law right of access, courts must find that "compelling reasons" justify secrecy. The First Amendment provides additional protection for certain judicial proceedings. The distinction makes sense because discovery materials exchanged between parties are not public records, while documents filed with the court presumptively are.
The amicus briefing in this case documented the scope of the problem. Professor Mark Lemley and other legal scholars submitted a brief citing their empirical study, Secrecy by Stipulation, 74 Duke L.J. (forthcoming), which analyzed over 2.2 million federal docket entries. They found that judges grant 95-97% of stipulated protective orders, often without any explicit good cause finding. When courts then treat these protective orders as authorization to seal judicial records, the result is “circular justification” that allows private parties to override the public’s right of access. The Reporters Committee for Freedom of the Press, joined by nineteen media organizations including the New York Times and Washington Post, documented how post-judgment intervention has historically been essential to uncovering matters of public concern, from the Catholic Church abuse scandal to opioid litigation. They argued that “delays measured in years” should be acceptable when the public interest is at stake. See, San Jose Mercury News, Inc. v. U.S. District Court, 187 F.3d 1096 (9th Cir. 1999).
The disposition here creates a Catch-22 for public access advocates. The substantive question of whether the sealing practice is legal remains unresolved because EFF could not clear the procedural threshold of intervention. But, EFF did not learn of the sealed materials until after the case settled.
In my view, the openness of judicial proceedings is a foundational principle of our legal system. Public access promotes confidence in the judiciary, provides a check on judicial conduct, permits scrutiny of the litigation process, and ensures that legal rules developed through adjudication are available to guide future conduct. These values apply with particular force to standard-essential patent litigation. But, the current procedural framework makes this process exceedingly difficult.
This case illustrates why Federal Rule of Civil Procedure 24 needs a dedicated pathway for public access intervention. The current framework forces organizations like EFF to satisfy requirements designed for parties seeking to protect private interests in litigation outcomes. That framework makes little sense when applied to intervenors whose sole purpose is vindicating the public’s constitutional and common law right of access to judicial proceedings. A new Rule 24(c) could establish intervention of right for persons seeking access to sealed judicial records, with timeliness measured not from when documents were filed but from when the would-be intervenor discovered the sealing or reasonably could have discovered it. The rule should toll timeliness during good-faith efforts to obtain voluntary unsealing, recognizing that meet-and-confer requirements serve judicial economy but should not create procedural traps. Many courts already grant what might be called “limited purpose intervention” for public access claims, permitting nonparties to challenge sealing without becoming full parties to the underlying litigation. Codifying this practice would ensure uniform treatment across districts and eliminate the current situation where access rights depend on which judge draws the case.
The substantive standard for public access intervention should incorporate a balancing test that accounts for the public importance of the sealed information. Matters involving government conduct, public health and safety, industry-wide practices, and the interpretation of legal standards affecting large populations warrant greater solicitude for access claims. Standard-essential patent disputes, which shape the balance between intellectual property rights and technological interoperability, fall squarely within this category. The DOCSIS licensing materials sealed in this case involve technology deployed in millions of homes; the public has a legitimate interest in understanding how courts resolve such disputes. A reformed intervention rule should also address the “prejudice” question that defeated EFF’s motion here. The burden of responding to an unsealing motion is simply the cost of having sought secrecy in the first place, not cognizable prejudice that can defeat intervention. Congressional action may be necessary to achieve this reform, as the Rules Enabling Act process can be slow and the Judicial Conference has historically been cautious about expanding access rights. But the alternative, a system where sealing practices effectively escape appellate review because intervenors cannot clear procedural thresholds is simply not working.