EFF presses Federal Circuit and PTAB for greater transparency

The Electronic Frontier Foundation (EFF) has written to the US Court of Appeals for the Federal Circuit demanding more transparency in patent disputes.

The EFF describes itself as the “leading non-profit organisation defending civil liberties in the digital age”.

According to the organisation, the US’s First Amendment (which protects the freedom of speech and the freedom of the press) should provide public access to proceedings. However, the Federal Circuit is delaying the public from reading filed briefs, the EFF claimed.

The EFF sent a letter yesterday, June 4, demanding the court ends the practice.

“The court’s current practice is to docket briefs as ‘tendered’ when they are first filed and to disable public access until the briefs are accepted by the clerk’s office,” said the EFF.

“This sometimes leads to briefs being withheld from the public for more than a week.”

According to the EFF, the public’s right to access court includes the right to timely access. The organisation claimed that delays at the Federal Circuit mean that briefs are not always available until after supporting amicus briefs are due.  

The EFF labelled the practice “particularly puzzling” as the court has supported transparency in the past.

In addition, the organisation wrote to the Patent Trial and Appeal Board (PTAB) calling for the end of “secret” docket entries.

Without naming the case, the EFF said that it filed an amicus brief at the PTAB in a dispute regarding whether a patent owner can avoid review by claiming sovereign immunity.

During its involvement in the case, the EFF said that it realised there is no public docket entry when documents are filed under seal at the PTAB.

“So, not only does the public not get to see the sealed document, it doesn’t even know that one has been filed,” claimed the EFF. It also alleged that the PTAB granted it access to thousands of filings at the board that the public had no record of.

The EFF said that the lack of public access prevents the public from monitoring proceedings. It also alleged many “secret docket entries” should not have been filed under seal.