public accessibility PTAB

Totality of Circumstances for Determining Public Accessibility

Over the years, the Patent Trial & Appeal Board had become panel dependent in assessing questions of public accessibility at institution.  Some panels seemed to require a showing of a likelihood of public accessibility to move forward, while others  required a more definitive showing.  Last spring, the Precedential Opinion Panel (POP) took up this growing rift in institution standards in Hulu, LLC v. Sound View Innovations, LLC, Case IPR2018-01039. Specifically,  the  POP addressed the requirements for establishing that a reference qualifies as a printed publication at the time of institution.

In its now precedential decision, the Board found that a more flexible approach was needed at institution.
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Public Accessibility: A Fact Intensive Inquiry

Yesterday I highlighted a significant decision for Patent Trial & Appeal Board (PTAB) practitioners pertaining to Real-Party-In-Interest (RPI) and privity determinations, Applications in Internet Time, LLC v. RPX Corporation. In Applications, the Federal Circuit faulted the Board for its narrow analysis of the facts, explaining that a more fact-intensive analysis was in order that takes into consideration the complete record. The Court’s rebuke of the PTAB’s RPI/Privy analyses reminded me of another significant Federal Circuit decision of the last few weeks that will recalibrate established PTAB practices.

In Medtronic, Inc. v. Barry the Court also faulted the Board for its narrow analysis of public accessibility. And, like its decision in Applications, directed the Board to perform a more fact intensive analysis of the entire record.
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