Is That Reference Publicly Accessible? Well, It Depends On The Facts

Reiterating its precedent, the U.S. Court of Appeals for the Federal Circuit held that determining whether a reference constitutes a printed publication—therefore qualifying as prior art—is a fact -intensive inquiry approached on a case-by-case basis.  SRI Int'l, Inc. v. Internet Sec. Sys., Inc., Case No. 07-1065 (Fed. Cir., Jan. 8, 2008) (Rader J.; Moore J. dissenting-in-part).

The technology in this case related to cyber-security.  SRI asserted four patents, all of which originated from a single application.  Each of the patents incorporated by reference a paper authored by the inventors called the "Live Traffic" paper.  This paper, among others, was related to SRI's publicized EMERALD project.  More than one year before the filing date of the application that led to the asserted patents, one of the inventors posted the Live Traffic paper on SRI's FTP server in a subdirectory along with other