This is an interesting sound bite from the oral argument of ESN, LLC v. Cisco Systems, Inc. et al., 2010-1185 (Fed. Cir. Oct. 8, 2010). Judges Prost, Rader, and Dyk commented on the trend by parties filing briefs at the Federal Circuit to mark a lot of the material as ”Confidential.” Judge Dyk characterized excessive confidential markings in appeal briefs as an “absolute plague.” Chief Judge Rader indicated the court might just go ahead and use the “confidential” material in its opinion anyway, if it needed to do so . . . . The panel ultimately issued a Rule 36 opinion; so, no confidential material was published by the court.
You can listen to Judges Prost and Dyk and Chief Judge Rader comment here: [Listen].