Printed publications disclosing an invention, or an obvious variant, have long served as the basis for most patent rejections based on prior art. Years ago, there was a brief flurry of activity in this area over the question as to whether the internet was “printed,” but the tsunami of internet references soon made it impossible to ignore this reservoir of art.

More recently, the question is being asked, when is an admittedly printed publication also “publicly available?” In one case, the Federal Circuit affirmed, and in the other, reversed the ruling of originating from decisions of the Patent Trial and Appeal Board (PTAB). The factual contexts of the two cases are quite different. In November, 2018, the Court considered accessibility and ruled on a case questioning whether the “relevant” public had access to a catalog distributed at an event with restricted attendance. GoPro, Inc. v. Contour IP Holding LLC  (read here)(“GoPro”). They held that the standard for public accessibility is one of “reasonable diligence,” to locate the information by “interested members of the relevant public.” Since the show was attended by actual and potential dealers, retailers, and customers, and was disseminated with no restrictions and was intended to reach the general public., it was “accessible.”

The other case concerns the ability of a person to find a document in a library by means of an electronic search. Acceleration Bay, LLC v. Activision Blizzard Inc. (read here)(“Acceleration Bay”). Using the same rationale as in Go Pro, the court stated that the PTAB had correctly noted that “public accessibility” requires more than technical accessibility and turned on whether or not an  interested skilled artisan, using reasonable diligence, would have found an item of prior art on a technical website.  The court found that found that despite some indexing and search functionality on the website, the reference was not publicly accessible, since the website allowed a user to view a list of technical reports indexed only by author or year and that there was no evidence as to how many reports were in the database. The Board had correctly determined that at best, the evidence for accessibility “suggests that an artisan might have located Lin by skimming through potentially hundreds of titles in the same year, with most containing unrelated subject matter, or by viewing all titles in the database listed by author, when the authors were not particularly well known.” The site was therefore not searchable or indexed in a meaningful way so that a person of ordinary skill in the art would have located it.” J.A.

Both decisions reflect fairly common circumstances. As the Federal Circuit explained, the test should center on whether or not the target audience would have been interested or had expertise in the subject matter of the event in which the publication was distributed is not by itself dispositive of the public accessibility inquiry. GoPro at 8. Also, where an electronic search is concerned, the test for public accessibility is not simply whether a document had been indexed.

THE BUSINESS TAKE-AWAY: These both seem to be fairly common-sense takes on the accessibility issue. Does the relevant audience have at least some access to the document, and using reasonable diligence, would that audience have found the prior art reference. Arcane arguments beyond these two points seem unlikely to sway the Federal Circuit.