Patent Law

Kuney v. Bean (BayState v. Bowers) (Fed. Cir. 2008)

Professor Kuney is in the midst of writing a detailed account of the BayState v. Bowers case file. In that case, the CAFC affirmed the enforceability of a shrink wrap license term that barred reverse engineering of the software. In that case, a number of amici briefs argued that reverse engineering sits at the core of capitalism.

Like most patent lawsuits, the documents filed and exchanged in the case are kept from the public ? sealed under a stipulated protective order signed by the Massachusetts District Court. To open the file, Kuney filed a motion to intervene in the case and to modify the protective order. Bowers agreed to open access to the documents, but Bean (BayState's successor in interest) initially refused. Although Bean and Kuney later agreed to a modified protective order, the court refused to enter it and rejected Kuney's motion to intervene.

On appeal, the CAFC found that the lower court had abused its discretion and vacated.

Opening a Sealed File: "Intervention is the proper means for a non-party to challenge a protective order." When making a determination of whether to open records, the courts should begin with "a presumption of public access to judicial records." In a decade old case, the First Circuit explained the value of public access as fostering "the important values of quality, honesty, and respect for the judicial system." In this case, the CAFC recognized that Kuney needs the documents to do his scholarly work. However, the district court created no record of weighing the value of public access against the presumption of privacy.

Because the district court failed to explain its reason for dismissal, this case is vacated "for a balancing of the public and private interests in determining whether to grant or deny Professor Kuney's motion."