United States District Court, District of Columbia
GILBERT P. HYATT, Plaintiff,
MICHELLE K. LEE, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant.
MEMORANDUM AND ORDER
C. LAMBERTH United States District Judge.
the Court are supplemental briefs concerning what information
will be sealed in the course of this litigation. Mr. Hyatt
argues that a great deal of the information pertaining to his
patent applications and prosecutions should remain sealed.
The PTO takes a more narrow view of what should remain
sealed, arguing that Mr. Hyatt improperly conflates the
statutory scheme governing the PTO's disclosure of
information and rules surrounding transparency in litigation.
However, the parties have agreed on the legal framework for
analyzing the issue-they simply disagree on the conclusion.
Analysis of Hubbard Factors
Mr. Hyatt and the PTO argue that this question is best
analyzed under United States v. Hubbard, 650 F.2d
293 (D.C. Cir. 1980). Hubbard lays out a six part test:
(1) the need for public access to the documents at issue; (2)
the extent of previous public access to the documents; (3)
the fact that someone has objected to disclosure, and the
identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice
to those opposing disclosure; and (6) the purposes for which
the documents were introduced during the judicial
E.E.O.C. v. Nat'l Children's Ctr., Inc., 98
F.3d 1406, 1409 (D.C. Cir. 1996).
The Need for Public Access
regards to the need for public access to the documents, there
is a "strong presumption in favor of public access to
judicial proceedings." Johnson v. Greater Se. Cmty.
Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991). This
is important in analyzing the Hubbard factors
because there the Circuit noted that:
The public . . . had access, inter alia, to the courtroom
proceedings on the motion to suppress, to the memoranda filed
by the parties in connection with that motion, to the trial
judge's memorandum decision on the suppression motion, to
the trial judge's memorandum decision on the negotiated
disposition, to the stipulated record which was the basis for
the defendants' convictions and to the actual
"trial" of the criminal charges of which the
defendants were convicted.
United States v. Hubbard, 650 F.2d 293, 317-18 (D.C.
Cir. 1980). That is, the documents at issue in
Hubbard were not meaningfully limited public access
to judicial proceedings.
documents at issue here include memorandum opinions as well
as memoranda filed by the parties. While not all the
documents Mr. Hyatt wishes to have sealed are equivalent with
respect to their impact on judicial decision-making, many of
these documents were the very ones filed by or relied upon by
public interest in these documents is heightened because they
allow the public to understand the rulings as well as the
contours of the disputes between the parties. Additionally,
as one of the parties is the PTO, the public's interest
is higher still. Doe v. Pub. Citizen, 749 F.3d 246,
271 (4th Cir. 2014) ("The interest of the public and
press in access to civil proceedings is at its apex when the
government is a party to the litigation. Indeed, the public
has a strong interest in monitoring not only functions of the
courts but also the positions that its elected officials and
government agencies take in litigation.").
turn, Mr. Hyatt argues that no member of the public has
sought to view the confidential materials in this case and
further that redactions are sufficient to enable the public
to understand the Court's decisions.
Mr. Hyatt's primary argument is that under 35 U.S.C.
§ 122 patent application and prosecution information
generally remains confidential before the PTO until a patent
is issued. The PTO does not dispute this. Mr. Hyatt argues
that this should control the Hubbard analysis, and
points to In re Sealed Case,237 F.3d 657, 666 (D.C.
Cir. 2001) for the proposition that "only rarely, if
ever, might the remaining five Hubbard factors ...