Sealed Records, A Reporter’s View

Posted on | September 15, 2008 | 1 Comment

Interest in patent infringement cases extends well beyond the specific parties involved.  Cases involving well known companies or products get covered in the Wall Street Journal and other large media sources, but even lesser known cases generate great interest in their industry: for example, Blackboard’s cases in on-line learning and the Wii controller in gaming circles. 

Also, of course, are pharma cases with generics–we have received numerous inquiries from financial analysts and others trying to follow and understand pharma patent cases because a final ruling can have a big impact on a company’s financial outlook…and stock price.

The public’s main conduit for this information are journalists and reporters.  Because sealed case records interfere with this flow of information, we asked a professional journalists (and fellow blogger) Joe Mullin of The Prior Art and IP Law & Business to comment.  Joe graciously agreed, and found time to offer the following:

First, I don’t feel qualified to weigh in on differences
between venues in terms of rules regarding sealed documents. So, I’ll
just speak generally about my observations.

It’s become clear to me that some patent cases have particularly heavy
document sealing, Often, I think it’s beyond what is appropriate. I
don’t think this is done with malicious intent, and I know evidence in
these cases often does involve true trade secrets that are worth
concealing. But, I’d like to at least see an on-the-record reason–a
good reason–for what I can’t see.

Sometimes both the plaintiff and defendant share an interest in
minimizing public exposure. (or at least believe it’s in their
interest; I would argue that a fair, accurate, and complete public
record is in everyone’s long-term interest, but of course, I admit to
being self-interested in that regard!)

Other times, I suspect defendants want to resolve their own dispute
while still making life difficult for other defendants or possible
defendants–after all, that’s likely to be the competition. In one case
I inquired about recently, an attorney told me he didn’t have a problem
with sealing as many documents as possible. Separately, another lawyer
told me he sometimes wasn’t comfortable with how much he was asked to
seal but felt client pressure to keep as much information as possible
under wraps.

So there isn’t necessarily anyone looking out for the public interest.
Yet, patents have a big public impact on our economy as a whole and on
individual consumers. That’s true even though the chain of events from
a particular lawsuit to the marketplace can be murky.

The public interest becomes especially strong when a patent is widely
asserted. The Desire2Learn case highlighted on PATracer is a perfect
example of a lawsuit that will have broad public impact. Patent
disputes by their nature just shouldn’t be as private as courts are
sometimes treating them. After all, patent rights are granted by the
federal government for a very public purpose: to spur innovation.
Examining specific patent disputes is necessarily a part of evaluating
the system.

The right to be a plaintiff and have a grievance heard before an
independent judiciary is vital. It should be properly balanced against
both the defendant’s right to confront his or her accuser, and the
public’s right to know what is at issue in a lawsuit. I’d like to see
judges apply more scrutiny to the sealing of documents. I think that
would be a good start.

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