In a recent decision vacating the PTAB's finding that a
draft standard for video coding emailed to a listserv was not
publicly accessible, the Federal Circuit again corrected the
PTAB's application of the legal standard to determine the
public accessibility of prior art. Samsung Electronics Co., Ltd. v. Infobridge Pte.
Ltd., case no. 2018-2007, 2018-2012, 2019 WL 3047113 (Fed.
Cir. July 12, 2019). Although multiple means of accessibility were
alleged, the PTAB's analysis was upheld with respect to all but
the listserv distribution. For the listserv, the court said that
the PTAB improperly required the petitioner (Samsung) to show that
the reference was "generally" or "widely"
disseminated to "a significant portion of those interested and
skilled in the art." In doing so, the PTAB confused access and
accessibility. Once it is shown that a person of ordinary skill in
the art could access the reference, said the court, there
is no additional requirement that particular
