Patent Appeal Tracer has run a provocative series of posts discussing the process for and practice of sealing documents in the Eastern District of Texas cases, focused of course on patent disputes. The first post details the procedures as they understand it and questions whether parties should be allowed to file sealed documents without the court’s review — click here to read it.
The second post includes the comments of Michael Smith from his E.D. Texas Weblog — click here to read it. Smith explains that the sealing rules have changed since those quoted by Patent Tracer, but that it is still possible for pre-approval to be granted in cases giving the parties initial control over what is sealed. Smith acknowledges that too much may be filed under seal, but explains that the E.D. Texas Rules Committee is balancing the public right to information with a workable process:
Now the question of whether too much is being filed under seal is a valid one – I’ve seen a couple of cases recently where it seemed everything was under seal, and it wasn’t immediately apparent that anything confidential was involved. But that is definitely the exception in my experience. . . . But I can say that our principal concern, at least on the ED Tex’s rules committee when the issue has come up, was coming up with a mechanism to make filing under seal as easy as possible where the reason for the filing was that confidential documents were attached.
Most recently, Patent Appeals Tracer solicited the views of Joe Mullin who writes for IP Law & Business as well as writing The Prior Art blog — click here for the post. Mullin does not feel qualified to discuss the district to district differences in sealing, but strongly advocates for the importance of public openness in patent disputes and worries that the litigation stakeholders are not representing the public interest (that is likely why you see news agencies appearing in significant cases to advocate unsealing documents and court proceedings):
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. . . .
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.
I think there is no doubt that Mullin is correct as to the importance of patent cases. Patent litigation has been a significant business issue for some time, and its important continues to increase. For the power of patent litigation in an industry, you can look to the Eastern District of Texas Desire2Learn case cited by Mullin or the Trading Technologies cases here in the Northern District, among many, many others.
But in my experience the district and circuit judges act as the protectors of the public interest. And, at least in the Northern District, the judges largely get it right.* The practice here, as required by the Seventh Circuit, is that there are no blanket rights to file under seal provided in protective orders. Instead, each party must file a motion to seal when proposing to file sealed documents. Additionally, the parties publicly file a carefully redacted version of the sealed documents. And in most protective orders, the parties are required to spell out and justify distinct categories of documents that may be marked confidential. While this system still could be abused, I think it strikes a balance that benefits public access.
The process of filing motions for leave to seal and creating redacted versions of documents can be costly and seem unnecessary in the midst of a long litigation, particularly after a judge has already repeatedly agreed to seal the same information. But it serves to protect the public’s interest in an open system. I think it is a relatively strong system, particularly when supplemented by a third party news media voice on behalf of public openness in significant cases. And my experience litigating in various district courts across the country is that systems like the Northern District’s are becoming the norm. It is increasingly hard to find courts that will grant blanket permission to seal documents, especially without requiring that the public filing of redacted versions.

Continue Reading Sealing Documents in Federal Courts

Here are several stories worth checking out, but that did not warrant a separate post:
PA Tracer’s monthly patent filings report is out. The Northern District had nine new cases filed in July. That is reasonably busy for the deep summer, but nothing compared to the Eastern District of Texas’s 25 new patent cases — click here to read PA Tracer’s post.
The St. Louis Post-Dispatch ran a story recently about on Judge St. Eve — click here to read it.* The story discusses many traits that are obvious to those who have practiced before her. Judge St. Eve is very punctual and efficient, and she has absolute control of her courtroom, which she maintains with a civility and kindness that are impressive. The article also speculates, using unnamed colleagues and media as sources, that Judge St. Eve will eventually be on Supreme Court short lists. Here’s hoping she stays in the Northern District a long time before getting called up to One First Street.
Chicago Lawyer Magazine did a nice profile on Chicago IP lawyer Carol Genis of Bell, Boyd & Lloyd. Click here to read it. The article largely focuses on how Genis develops strong bonds of trust and friendship with clients.
Duane Valz, Vice President & Associate General Counsel of Yahoo!’s Global Patent Strategy, is discussing approaches for patenting Internet-related ideas in a webinar on Wednesday, September 3 from 1:30 – 3:00 CT — click here for more information.
* Hat tip to the WSJ Law Blog for pointing out the story here.

Continue Reading IP Legal News

Patent Appeal Tracer has a great post listing the patent filings for June 2008 by district. Tracer used Pacer and “math” to come up with its list, which shows that the Northern District is fourth in patent filings for the month with 19 of 255 filings (about 85 of the total). Those 19 filings give the Northern District 87 patent cases in the first half of 2008, well on the way to another busy year. The top three were not surprising:
1. Eastern District of Texas — 32 filings
2. District of Delaware — 24 filings
3. Central District of California — 20 filings
Patent Appeal Tracer also mentions EZ4Media’s two Northern District cases against thirteen defendants as cases to watch. The defendants in those cases are alleged to infringe patents to wireless streaming of digital media.
[UPDATE:] More on the year’s trademark and copyright filings is coming next week, prompted by Mike Graham’s Seattle Trademark Lawyer post about this year’s Western District of Washington trademark litigation statistics — click here to read it. Thanks for the mention Mike.

Continue Reading Northern District Continues as a Top Five Patent District

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 2008-1392 & 1393 (Fed. Cir.).*
As Judge Moran predicted, the parties have appealed this case to the Federal Circuit.* The parties’ appeals were consolidated, leaving a single appeal with a substantial number of issues. The great, new Patent Appeal Tracer* reported that plaintiff Trading Technologies (“TT”) is appealing at least the following decisions (click here to read Tracer’s post on the cross-appeals):
Claim constructions, specifically constructions of “static price axis” and “order entry region” (click here and here and here for the Blog’s posts regarding claim construction opinions);
Summary judgment of noninfringement of most of defendant eSpeed’s software packages, including the following titles: Dual Dynamic, eSpeedometer, and modified eSpeedometer programs (click here for the Blog’s post regarding this opinion);
Partial summary judgment for TT regarding prior use (click here for the Blog’s post regarding this opinion); and
Judgment as a matter of law overturning the jury’s willfulness finding (click here for the Blog’s post regarding this opinion).
And eSpeed is appealing, at least, the following decisions:
The permanent injunction regarding certain of eSpeed’s software packages (click here for the Blog’s post regarding the Court’s permanent injunction).
* Thanks to Patent Tracer for linking to the Blog’s TT v. eSpeed coverage. Click here to read much more about this case in the Blog’s archives.

Continue Reading Trading Technologies v. eSpeed: The Appeals Begin

In addition to the new regional IP blogs, here are several new legal resources:
* Startup guru Guy Kawasaki has started the Alltop project which categorizes blogs by subject matter and aggregates blog content for each subject on a single page. The law Alltop site is excellent, although I would suggest adding the Chicago IP Litigation Blog. It is like having someone else set up and update feed readers for you. This is how Alltop describes itself:
We help you explore your passions by collecting stories from “all the top” sites on the web. We’ve grouped these collections — “aggregations” — into individual Alltop sites based on topics such as environment, photography, science, celebrity gossip, fashion, gaming, sports, politics, automobiles, and Macintosh. At each Alltop site, we display the latest five stories from thirty or more sites on a single page — we call this “single-page aggregation.”
* The Patent Appeal Tracer follows patent cases from filing of a Federal Circuit appeal, after many of the regional IP blogs stop following them, until an opinion issues, when Patently-O and others take over. It is an interesting idea and a well written blog. As an example of what they do, check out this recent post on the Federal Circuit appeal of Northern District case Ball Aerosol and Specialty Container, Inc. v. Limited Brands, Inc., No. 05 C 3684 (N.D. Ill.) (Der-Yeghiayan, J.) — click here or here for coverage of the case in the Blog’s archives.
[UPDATE]: The Chicago IP Litigation Blog has been added to Alltop’s law page. Thanks Guy. Now, if I could just get Kawasakied.

Continue Reading New Legal Resources