PRECEDENTIAL: IPRs And Examination Have Different Standards For Establishing A Printed Publication

As was previously noted here, the PTAB recently designated one decision as precedential and four as informative concerning the necessary showing for proving up a reference as printed publication prior art. Here is an in depth review of the precedential decision, noting different handling of “printed publication” questions during patent application examination and IPRs.

The Patent Trial and Appeal Board ("PTAB" recently designated Ex parte Grillo-López, Appeal No. 2018-006082 (Jan. 31, 2020) as a precedential case. In this matter, the patent-application-prosecuting Applicant requested rehearing of an earlier PTAB decision ("Decision") in which a transcript of the July 25, 1997 meeting of the FDA’s Biological Response Modifiers Advisory Committee ("FDA Transcript") was deemed to be sufficiently accessible to the public interested in the art so as to render it a printed publication within the meaning of 35 U.S.C. § 102(b). That FDA Transcript reference was used by the