Federal Circuit Concludes That Reference Qualifies As Prior Art Based On Reply Evidence

In  VidStream LLC v. Twitter Inc., Appeals 2019-1734, -1735, (Fed. Cir. November 25, 2020), the Federal Circuit affirmed a pair of PTAB inter partes review decisions that determined VidStream's claims, directed to publishing content on social networking websites, are unpatentable as obvious over a five-way combination of references. Important, in this appeal, was the subsidiary conclusion that one of the references – Anselm Bradford & Paul Haine, HTML5 Mastery: Semantics, Standards, and Styling (hereinafter "Bradford") – qualified as prior art.  On appeal, VidStream did not challenge the PTAB's determination of obviousness if Bradford qualified as a prior art reference.

The priority date of the VidStream patent is May 9, 2012.  Id. at 3.  With its IPR petitions, Twitter submitted pages of Bradford that indicated a copyright date of 2011 (i.e., stated, "Copyright © 2011 by Anselm Bradford and Paul Haine"), but that also identified a publication date of December