Submitting Patent Lawsuits as an Nameless Plaintiff within the N.D. Ailing.—Is it Doable?
On September 4, 2020, in ABC Corporation I, et al. v. The Partnerships and Unincorporated Associations Identified on Schedule “A,” the U.S. District Court for the Northern District of Illinois held that plaintiffs could not conceal their identities in patent infringement suits by filing suit under pseudonyms. The plaintiffs had filed using pseudonyms to avoid tipping off the defendants and giving them the opportunity to reorganize under new seller aliases and to evade prosecution.
The plaintiffs create, manufacture, and sell products with patented designs. They anonymously filed a complaint, including exhibits under seal, alleging that the defendants had infringed plaintiffs’ patented designs. The plaintiffs alleged that the defendants were selling infringing products to consumers in Illinois and the United States through online stores that misleadingly portrayed the defendants as authorized online retailers. The plaintiffs asserted that the defendants regularly registered or acquired new seller aliases to conceal their identities and avoid the cessation of their business operations.
After the complaint was filed, the Northern District of Illinois issued an order to show cause why the documents should not be unsealed and why the complaint should not be stricken because the plaintiffs filed under pseudonyms. In response to the order, the plaintiffs cited Doe v. Village of Deerfield, which provided that with leave of the court, a party may file anonymously if there are “exceptional circumstances.” Such exceptional circumstances must outweigh both the public policy in favor of identified parties and the prejudice to the opposing party that would result from anonymity. Examples include, but are not limited to, the need to protect state secrets, trade secrets, or victims of abuse, as well as “a party’s allegation of fear of retaliation.”
Here, the plaintiffs’ theory for filing anonymously was to prevent the defendants from receiving advance notice of the lawsuit and creating new, fictitious seller names, thus evading the case. However, according to the court, this reasoning did not meet the necessary burden to proceed anonymously in the patent infringement case because the defendants could use new fictitious seller names even after the court issued a temporary restraining order. The court went on to hold that “[a] patent infringement case, without more, is not enough of a reason to circumvent the public disclosure requirements of the Federal Rules.” As a result, the complaint was stricken, and the court granted the plaintiffs leave to file an amended complaint reflecting the actual names of the entities.
The court’s decision further fleshes out “exceptional circumstances” in the context of intellectual property cases, excluding the desire to avoid tipping off an elusive defendant as a sufficient basis for filing a lawsuit anonymously. Consequently, in the absence of compelling grounds in favor of anonymity, plaintiffs may be required to provide their actual names in court filings related to patent infringement, despite any risks or fears associated with doing so.
Although filing a patent case as an anonymous plaintiff may not be an option unless exceptional circumstances can be shown, an alternative that might thwart a defendant’s evasion is to file a motion for a temporary restraining order contemporaneously with the complaint to maintain the status quo of the case. Contrary to the plaintiffs in ABC Corporation I who filed a complaint with the intention of later seeking a temporary restraining order, patent owners who file a complaint in conjunction with a motion for a temporary restraining order may successfully prevent defendants from removing any evidence of infringement and resurfacing under new seller aliases.
In addition to contemporaneously filing a complaint and a motion for a temporary restraining order, patent owners may notify third-party e-commerce websites and request the permanent removal of the seller and/or the infringing material. E-commerce companies, such as Amazon and Alibaba, provide platforms where owners may anonymously allege infringement of their patented works and report concerns with inappropriate listings, other sellers, and policy violations. Once a report is submitted, it is then evaluated through a multistep process that may result in the resolution of the alleged conflict. Such an option allows patent owners to potentially avoid the significant expense of federal litigation and seamlessly seek protection of their works without disclosing their names or any other identifiable information to the infringers. It would likely be more difficult for an infringer to evade the likes of Amazon with whom it already has a relationship as an Amazon seller.