In the recent case of Microsoft v. ThroughPuter, the Patent Trial and Appeal Board (PTAB) shed light on the public accessibility rule when it comes to using printed publications as prior art in patent proceedings. The case demonstrated a rigorous application of the Federal Circuit’s burden of proof for parties aiming to invalidate a patent referral using an institutional printed publication.
Employing printed publications for prior art, such as articles in university journals or thesis papers located in collegiate libraries, is a common strategy in patent litigation. However, these resources can only serve as prior art if they meet specific criteria.
The PTAB ruling in Microsoft v. ThroughPuter found that a prior art reference did not qualify due to lack of substantial evidence to demonstrate its public accessibility. This ruling highlights the integral role public accessibility plays in patent proceedings and brings into focus the higher standard of evidence required when using institutional printed publications as invalidating references.
Legal professionals must pay attention not only to the kind of prior art they present but also to the strength of evidence supporting the public available nature of their references.
For a detailed analysis of the case and its implications for patent litigations, refer to the analysis by Joseph Beauchamp and Alison Ibendahl from Jones Day in their article published on Law360:
PTAB Ruling Highlights Public Accessibility Rule For Prior Art . Please note, Law360 operates behind a paywall.