Determining When a Printed Publication is Publicly Accessible

Twice during the last year, the Federal Circuit found itself clarifying the meaning of public accessibility of a printed publication for the purposes of prior art under 35 USC §102. In one case, the court affirmed, and in the other, reversed the ruling of the lower tribunal. Each ruling originated from decisions of the Patent Trial and Appeal Board (PTAB). The factual contexts of the two cases are quite different. One relates to whether the relevant public had access to a catalog distributed at an event with restricted attendance. GoPro, Inc. v. Contour IP Holding LLC.  2017-1894, 2017-1936 (Fed. Cir. July 27, 2018) (“GoPro”). The other 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., 2017-2084 (Fed. Cir. Nov. 6, 2018) (“Acceleration Bay”). Neither situation is uncommon. As the Federal Circuit explained, whether 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.

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