PTAB: Merely Showing That A Reference Was Available On The Internet Does Not Establish 'Public Accessibility'

The Patent Trial and Appeal Board denied institution of a petition for IPR after determining that the petitioner failed to show a reasonable likelihood that its primary asserted reference, which was available through the Internet Archive, qualified as a prior art printed publication that was publicly accessible before the critical date. In particular, the board found that the petitioner failed to present sufficient evidence that an interested party exercising reasonable diligence would have located the archived reference.

The challenged patent relates to a free-standing solar tracker that rotates a solar panel assembly to track the movement of the sun during the day. The petitioner challenged two claims as anticipated and obvious over an installation guide for a solar tracker. In addressing the prior art status of the asserted installation guide, the petitioner stated that the reference was publicly accessible because it was available on a webpage prior to the