A Blog About Intellectual Property Litigation and the District of Delaware

As Judge Connolly famously noted in his "star chamber" opinions, part of the reason over-redaction is a problem is that the parties themselves have no real incentive to challenge one another on the issue. It's akin to a tragedy of the commons scenario, but worse—the parties suffer no adverse consequences from the redactions at all, because they can see all of the filings, it is only the public at large that is left with questions.

This unfortunate equilibrium is disrupted, however, when a third party requests unsealing.

It Is I, an Interested Third Party!
It Is I, an Interested Third Party! AI-Generated, displayed with permission

That's exactly what happened this week in United States of America v. Gilead Sciences, Inc., C.A No. 19-2103-MN. For those who haven't been following this fascinating case, the CDC has various patents on an HIV prophylaxis regimen (known as PrEP in the biz), following years of research into the issue. Gilead markets two blockbuster PrEP drugs—Truvada and Descovy—which the government alleges infringe those patents. The Complaint is rife with allegations that Gilead has been gouging customers with its pricing for these allegedly infringing drugs. See D.I. 1 at 48-49 ("Another critical barrier to increasing access to PrEP in the United States has been
the cost of Truvada®, which presently is only sold by Gilead"; "Many AIDS activists and many in the medical community have criticized Truvada’s price in the United States, particularly in light of HHS’s patents, the Government’s funding of clinical research on PrEP, and the relatively low cost at which Gilead apparently makes the product").

TL;DR, the case is a big deal even to normies. So, it probably shouldn't have come as a huge surprise when interested groups—the Public Interest Patent Law Institute and PrEP4 all took umbrage at the amount of redactions in the filings. So they wrote a letter calling the parties to task and requesting that the Court examine the redactions—especially in the SJ briefing:

However, PrEP4All, PIPLI, and the broader public cannot fully understand, or even identify, all the issues in dispute at summary judgment because public versions of the parties' motions papers have been entirely sealed or heavily redacted. For example, the parties' opposition and reply briefs and many of their declarations and other evidence, are sealed, in whole or in part. The extent to which these dispositive motion papers are sealed is especially concerning. In addition, other Court records separate from the parties' summary judgment papers also appear to be improperly sealed.
Moreover, neither my clients nor the public know why any of the court records in this case were sealed. It appears that neither the United States nor Gilead has ever filed a motion to seal arguing that secrecy is necessary for any of these sealed filings. Accordingly, the Court has never issued an opinion articulating the grounds on which they were sealed. As we explain in more detail below . . . it therefore appears that the parties have sealed these materials improperly, in violation of the public's right to access to court records in this district.

Id., D.I. 403 at 3.

Notably, Judge Noreika responded the very next day, ordering the parties to justify their sealed filings:

WHEREAS, on March 14, 2023, the Court received a letter (D.I. 403) from Morningside Heights Legal Services, Inc. asserting that the parties in this case have improperly redacted information in their filings with the Court, IT IS HEREBY ORDERED that, on or before 5:00 PM on March 17, 2023, the parties shall file a joint letter responding to the March 14, 2023 letter, including a proposal for how the Court should ensure that all sealed filings in this case (as well as redactions to public filings) comply with the applicable Third Circuit law.

We'll update when that letter turns up. Second post baby.

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