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.