As A General Rule, Civil Federal Court Patent Trial Proceedings Should Be Free And Open — To Public Observation

life-mrk-gil-fish-12-11-2016Once again, on a deeply-snowed-in, mufflingly-quiet, fluffily white-blanketed early Sunday afternoon — we lead with an unusual Sunday federal court filing. [Backgrounder, here.]

It strikes me as oddly ironic — as the filing below seeks. . . complete hyperbaric chamber-like silence — not just a deep snows’-muffling. Odd.

This filing comes in the ongoing patent trial (coming into day five tomorrow — of a likely ten day stint) in Delaware — about whether Gilead will owe Merck perhaps billions of dollars in infringement damages, for Hep C related patents Merck claims pre-date the ones Gilead relies upon to sell its Hep C cure mega-blockbusters, Harvoni® and the earlier version, called Sovaldi®.

As seen below (from a review of the relevant PACER docket sheets), we are to infer that something extraordinary is being asked, by Gilead. The lawyers from Fish & Richardson, on behalf of Gilead, are asking the able Judge Stark to seal the courtroom as early as Monday. This is a civil trial — and sealing pleadings is fairly routine, in patent cases, where trade secrets might normally reside. But sealing the courtroom, and preventing even press access for observation, as to the operation of the nation’s federal courts, is. . . highly unusual. In truth, it flies in the face of our notions of ordered liberty — ones we’ve cherished here for 240 plus years. I for one am hoping that the able judge does not grant it.

. . . .Full docket text for document 505:

[SEALED] Letter to Honorable Leonard P. Stark from Joseph B. Warden regarding sealing courtroom. (Warden, Joseph). . . .

Filed: Sunday — December 11, 2016

Now you know. But this does trouble me — how can it be, that even the notion as to why the entire courtroom might be sealed tomorrow, is itself sealed? I think our founders would say this should almost never happen, in a civil trial. Even so, off I go, for a long afternoon’s walk into the park, where the wood is quiet, and deep — doubly so, when buried in the fluff. Smiling the whole way. . . .



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