Chao and Silver: A Case Study in Patent Litigation Transparency

Professor Bernard Chao and Professor Dr. Derigan Silver, both of the University of Denver, have published A Case Study in Patent Litigation Transparency, forthcoming in Journal of Dispute Resolution.

Here is the abstract:

The courts have long recognized a general right to inspect and copy judicial documents. Yet, large swaths of filings in patent litigations are often inaccessible. This article takes a closer look at this phenomenon by examining a single case. The Monsanto v. DuPont dispute over genetically modified Roundup resistant crops was chosen because of the impact it has on both agribusiness and patent law. The $1 billion award against DuPont will undoubtedly shape the future of the market for genetically modified crops. Moreover, because the award was issued before a single infringing seed was sold, the case raises novel patent remedy issues.

This article assesses how transparent this landmark case was from two perspectives. Initially, it measures the nature and quantity of documents filed under seal. Next, this article selectively drills down on three different phases of the litigation, the pleadings, summary judgment and trial, to provide a more nuanced understanding of what the public cannot see. The results show a case that was fought largely in secret except for trial which was mostly open. Approximately 34% of the 1,697 of the filings listed in the PACER docket were filed under seal. This includes many of the key filings and court decisions. Moreover, the large majority of these secrets filings were made without any judicial oversight. It may be that the court simply did not have the resources to review all the applications to seal in this massive case. But regardless of the cause, this case highlights a recurring problem in patent litigation; the rampant sealing of documents of significant importance to the public.

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