Are Online Videos "Publicly Accessible"?

The decision in HVLP02 LLC v. Oxygen Frog turned on whether or not a YouTube video could qualify as a "printed publication," and therefore constitute prior art for patent purposes. As courts tend to assign the term "printed publication" a broad definition that usually includes videos, the YouTube video in question was considered prior art. Still, much of the analysis in these matters involves the "public accessibility" of a particular video.

This Jones Day White Paper reviews the law surrounding printed publications, explains practical ways to demonstrate that a YouTube video is or is not publicly accessible, and summarizes best practices. No one challenging an online video's status as prior art wants to hear the court chide "[i]t appears that Plaintiff is unfamiliar with how YouTube works." But that was the judge's retort in HVLP02 LLC v. Oxygen Frog, LLC ("Oxygen Frog").¹ Video channels like YouTube or Vimeo are among the most visited websites on the web.² As