Prior Printed Publications "Publicly Available" Despite Confidentiality Restrictions

In Weber, Inc. v. Provisur Techs., Inc., Nos. 2022-1751, 2022-1813 (Fed. Cir. Feb. 8, 2024), the Federal Circuit reviewed the Patent Trial and Appeal Board's (“Board”) determinations that Weber failed to establish unpatentability of Provisur's patents, and reversed-in-part, vacated-in-part, and remanded for further proceedings.

Weber filed two IPRs against Provisur's patents, arguing that they are invalid as obvious in view of several references, including Weber's operating manuals. The Board ultimately upheld the patents based on the finding that the operating manuals are not printed publications and that the prior art does not disclose two limitations.

The Federal Circuit held that the Weber operating manuals were sufficiently accessible to the public because one could obtain them upon purchase or request. The alleged confidentiality restrictions and copyright notice on the manuals and the IP rights clause covering the sales did not negate public availability.