You’re not supposed to be able to litigate in secret in the U.S. That’s especially true in a patent case dealing with technology that most internet users rely on every day.

 Unfortunately, that’s exactly what’s happening in a case called Entropic Communications, LLC v. Charter Communications, Inc. The parties have made so much of their dispute secret that it is hard to tell how the patents owned by Entropic might affect the Data Over Cable Service Interface Specifications (DOCSIS) standard, a key technical standard that ensures cable customers can access the internet.

In Entropic, both sides are experienced litigants who should know that this type of sealing is improper. Unfortunately, overbroad secrecy is common in patent litigation, particularly in cases filed in the U.S. District Court for the Eastern District of Texas.

EFF has sought to ensure public access to lawsuits in this district for years. In 2016, EFF intervened in another patent case in this very district, arguing that the heavy sealing by a patent owner called Blue Spike violated the public’s First Amendment and common law rights. A judge ordered the case unsealed.

As Entropic shows, however, parties still believe they can shut down the public’s access to presumptively public legal disputes. This secrecy has to stop. That’s why EFF, represented by the Science, Health & Information Clinic at Columbia Law School, filed a motion today seeking to intervene in the case and unseal a variety of legal briefs and evidence submitted in the case. EFF’s motion argues that the legal issues in the case and their potential implications for the DOCSIS standard are a matter of public concern and asks the district court judge hearing the case to provide greater public access.

Protective Orders Cannot Override The Public’s First Amendment Rights

As EFF’s motion describes, the parties appear to have agreed to keep much of their filings secret via what is known as a protective order. These court orders are common in litigation and prevent the parties from disclosing information that they obtain from one another during the fact-gathering phase of a case. Importantly, protective orders set the rules for information exchanged between the parties, not what is filed on a public court docket.

The parties in Entropic, however, are claiming that the protective order permits them to keep secret both legal arguments made in briefs filed with the court as well as evidence submitted with those filings. EFF’s motion argues that this contention is incorrect as a matter of law because the parties cannot use their agreement to abrogate the public’s First Amendment and common law rights to access court records. More generally, relying on protective orders to limit public access is problematic because parties in litigation often have little interest or incentive to make their filings public.

Unfortunately, parties in patent litigation too often seek to seal a variety of information that should be public. EFF continues to push back on these claims. In addition to our work in Texas, we have also intervened in a California patent case, where we also won an important transparency ruling. The court in that case prevented Uniloc, a company that had filed hundreds of patent lawsuits, from keeping the public in the dark as to its licensing activities.

That is why part of EFF’s motion asks the court to clarify that parties litigating in the Texas district court cannot rely on a protective order for secrecy and that they must instead seek permission from the court and justify any claim that material should be filed under seal.

On top of clarifying that the parties’ protective orders cannot frustrate the public’s right to access federal court records, we hope the motion in Entropic helps shed light on the claims and defenses at issue in this case, which are themselves a matter of public concern. The DOCSIS standard is used in virtually all cable internet modems around the world, so the claims made by Entropic may have broader consequences for anyone who connects to the internet via a cable modem.

It’s also impossible to tell if Entropic might want to sue more cable modem makers. So far, Entropic has sued five big cable modem vendors—Charter, Cox, Comcast, DISH TV, and DirecTV—in more than a dozen separate cases. EFF is hopeful that the records will shed light on how broadly Entropic believes its patents can reach cable modem technology.

EFF is extremely grateful that Columbia Law School’s Science, Health & Information Clinic could represent us in this case. We especially thank the student attorneys who worked on the filing, including Sean Hong, Gloria Yi, Hiba Ismail, and Stephanie Lim, and the clinic’s director, Christopher Morten.

The U.S. Senate is moving forward with two bills that would enrich patent trolls, patent system insiders, and a few large companies that rely on flimsy patents, at the expense of everyone else. 

One bill, the Patent Eligibility Restoration Act (PERA) would bring back some of the worst software patents we’ve seen, and even re-introduce types of patents on human genes that were banned years ago. Meanwhile, a similar group of senators is trying to push forward the PREVAIL Act (S. 2220), which would shut out most of the public from even petitioning the government to reconsider wrongly granted patents. 

Take Action

Tell Congress: No New Bills For Patent Trolls

Patent trolls are companies that don’t focus on making products or selling services. Instead, they collect patents, then use them to threaten or sue other companies and individuals. They’re not a niche problem; patent trolls filed the majority of patent lawsuits last year and for all the years in which we have good data. In the tech sector, they file more than 80% of the lawsuits. These do-nothing companies continue to be vigorous users of the patent system, and they’ll be the big winners under the two bills the U.S. Senate is considering pushing forward. 

Don’t Bring Back “Do It On A Computer” Patents 

The Patent Eligibility Restoration Act, or PERA, would overturn key legal precedents that we all rely on to kick the worst-of-the-worst patents out of the system. PERA would throw out a landmark Supreme Court ruling called the Alice v. CLS Bank case, which made it clear that patents can’t just claim basic business or cultural processes by adding generic computer language. 

The Alice rules are what—finally—allowed courts to throw out the most ridiculous “do it on a computer” software patents at an early stage. Under the Alice test, courts threw out patents on “matchmaking”, online picture menus, scavenger hunts, and online photo contests. 

The rules under Alice are clear, fair, and they work. It hasn’t stopped patent trolling, because there are so many patent owners willing to ask for nuisance-value settlements that are far below the cost of legal defense. It’s not perfect, and it hasn’t ended patent trolling. But Alice has done a good job of saving everyday internet users from some of the worst patent claims. 

PERA would allow patents like the outrageous one brought forward in the Alice v. CLS Bank case, which claimed the idea of having a third party clear financial transactions—but on a computer. A patent on ordering restaurant food through a mobile phone, which was used to sue more than 100 restaurants, hotels, and fast-food chains before it was finally thrown out under the Alice rules, could survive if PERA becomes law. 

Don’t Bring Back Patents On Human Genes 

PERA goes further than software. It would also overturn a Supreme Court rule that prevents patents from being granted on naturally occurring human genes. For almost 30 years, some biotech and pharmaceutical companies used a cynical argument to patent genes and monopolize diagnostic tests that analyzed them. That let the patent owners run up the costs on tests like the BRCA genes, which are predictive of ovarian and breast cancers. When the Supreme Court disallowed patents on human genes found in nature, the prices of those tests plummeted. 

Patenting naturally occurring human genes is a horrific practice and the Supreme Court was right to ban it. The fact that PERA sponsors want to bring back these patents is unconscionable. 

Allowing extensive patenting of genetic information will also harm future health innovations, by blocking competition from those who may offer more affordable tests and treatments. It could affect our response to future pandemics. Imagine if the first lab to sequence the COVID-19 genome filed for patent protection, and went on to threaten other labs that seek to create tests with patent infringement. As an ACLU attorney who litigated against the BRCA gene patents has pointed out, this scenario is not fantastical if a bill like PERA were to advance. 

Take Action

Tell Congress To Reject PERA and PREVAIL

Don’t Shut Down The Public’s Right To Challenge Patents

The PREVAIL Act would bar most people from petitioning the U.S. Patent and Trademark Office (USPTO) to revoke patents that never should have been granted in the first place. 

The U.S. Patent and Trademark Office (USPTO) issues hundreds of thousands of patents every year, with less than 20 hours, on average, being devoted to examining each patent. Mistakes happen. 

That’s why Congress created a process for the public to ask the USPTO to double-check certain patents, to make sure they were not wrongly granted. This process, called inter partes review or IPR, is still expensive and difficult, but faster and cheaper than federal courts, where litigating a patent through a jury trial can cost millions of dollars. IPR has allowed the cancellation of thousands of patent claims that never should have been issued in the first place. 

The PREVAIL Act will limit access to the IPR process to only people and companies that have been directly threatened or sued over a patent. No one else will have standing to even file a petition. That means that EFF, other non-profits, and membership-based patent defense companies won’t be able to access the IPR process to protect the public. 

EFF used the IPR process back in 2013, when thousands of our supporters chipped in to raise more than $80,000 to fight against a patent that claimed to cover all podcasts. We won’t be able to do that if PREVAIL passes. 

And EFF isn’t the only non-profit to use IPRs to protect users and developers. The Linux Foundation, for instance, funds an “open source zone” that uses IPR to knock out patents that may be used to sue open source projects. Dozens of lawsuits are filed each year against open source projects, the majority of them brought by patent trolls. 

IPR is already too expensive and limited; Congress should be eliminating barriers to challenging bad patents, not raising more.

Congress Should Work For the Public, Not For Patent Trolls

The Senators pushing this agenda have chosen willful ignorance of the patent troll problem. The facts remain clear: the majority of patent lawsuits are brought by patent trolls. In the tech sector, it’s more than 80%. These numbers may be low considering threat letters from patent trolls, which don’t become visible in the public record. 

These patent lawsuits don’t have much to do with what most people think of when they think about “inventors” or inventions. They’re brought by companies that have no business beyond making patent threats. 

The Alice rules and IPR system, along with other important reforms, have weakened the power of these patent trolls. Patent trolls that used to receive regular multi-million dollar paydays have seen their incomes shrink (but not disappear). Some trolls, like Shipping and Transit LLC finally wound up operations after being hit with sanctions (more than 500 lawsuits later). Trolls like IP Edge, now being investigated by a federal judge after claiming its true “owners” included a Texas food truck owner who turned out to be, essentially, a decoy. 

There’s big money behind bringing back the patent troll business, as well as a few huge tech and pharma companies that prefer to use unjustified monopolies rather than competing fairly. Two former Federal Circuit judges, two former Directors of the U.S. Patent and Trademark Office, and many other well-placed patent insiders are all telling Congress that Alice should be overturned and patent trolls should be allowed to run amok. We can’t let that happen. 

Take Action

Tell Congress: Don't Work For Patent Trolls

At EFF, we believe that all the rights we have in the offline world–to speak freely, create culture, play games, build things and do business–must hold up in the digital world, as well. 

EFF’s longstanding project of fighting for a more balanced, just patent system has always borne free expression in mind. And patent trolls, who simply use intellectual property (IP) rights to extract money from others, continue to be a barrier to people who want to freely innovate, or even just use technology. 

Defending IPR 

The inter partes review (IPR) process that Congress created about a decade ago is far from perfect, and we’ve supported a few ideas that would make it stronger. But overall, IPR has been a big step forward for limiting the damage of wrongly granted patents. Thousands of patent claims have been canceled through this process, which uses specialized administrative judges and is considerably faster and less expensive than federal courts. 

And IPR does no harm to legitimate patent holders. In fact, it only affects a tiny proportion of patents at all. In fiscal year 2023, there were 392 patents that were partially invalidated, and 133 patents that were fully invalidated. That’s out of a universe of an estimated 3.8 million “live” patents, according to the U.S. Patent and Trademark Office’s (USPTO) own data. 

Patent examiners have less than 20 hours, on average, to go through the entire review process for a particular patent application. The process ends with the patent applicant getting a limited monopoly from the government–a monopoly right that’s now given out more than 300,000 times per year. It only makes sense to have some type of post-grant review system to challenge the worst patents at the patent office. 

Despite this, patent trolls and other large, aggressive patent holders are determined to roll back the IPR process. This year, they lobbied the USPTO to begin a process that would allow wrongheaded rule changes that would severely threaten access to the IPR process. 

EFF, allied organizations, and tens of thousands of individuals wrote to the U.S. Patent Office opposing the proposed rules, and insisting that patent challenges should remain open to the public. 

We’re also opposing an even more extreme set of rule changes to IPR that has been unfortunately put forward by some key Senators. The PREVAIL Act would sharply limit IPR to only the immediately affected parties, and bar groups like EFF from accessing IPR at all. (A crowdfunded IPR process is how we shut down the dangerous “podcasting” patent.) 

Defending Alice

The Supreme Court’s 2014 decision in Alice v. CLS Bank barred patents that were nothing more than abstract ideas with computer jargon added in. Using the Alice test, federal courts have kicked out a rogue’s gallery of hundreds of the worst patents, including patents claiming “matchmaking”, online picture menus, scavenger hunts, and online photo contests. 

Dozens of individuals and small businesses have been saved by the Alice precedent, which has done a decent job of stopping the worst computer patents from surviving–at least when a defendant can afford to litigate the case. 

Unfortunately, certain trade groups keep pushing to roll back the Alice framework. For the second year in a row, we saw the introduction of a bill called the Patent Eligibility Restoration Act. This proposal would reverse course not only on the Alice rule, but also authorize the patenting of human genes that currently cannot be patented thanks to another Supreme Court case, AMP v. Myriad. It would “restore” the absolute worst patents on computer technology, and on human genes. 

We also called out the U.S. Solicitor General when that office wrote a shocking brief siding with a patent troll, suggesting that the Supreme Court re-visit Alice. 

The Alice precedent protects everyday internet users. We opposed the Solicitor General when she came out against users, and we’ll continue to strongly oppose PERA. 

Until our patent laws get the kind of wholesale change we have advocated for, profiteers and scam artists will continue to claim they “own” various types of basic internet use. That myth is wrong, it hurts innovation, and it hurts free speech. With your help, EFF remains a bulwark against this type of patent abuse.

This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.