We have previously written about disputes regarding whether a
prior art reference qualifies as a publication in AIA
trials.1 In a recent decision, the Board ruled that a
prior art reference did not qualify as a publication under
§102(a). The case, Activision Blizzard v Acceleration
Bay,2 rejected petitioner's attempt to rely on
a 1999 technical report allegedly published by University of
California / San Diego ("UCSD").
Key Takeaway: This case demonstrates that
the PTAB will adhere to demanding requirements for petitioners to
establish that a reference qualifies as a prior art publication.
Petitioners should be prepared to provide detailed evidence showing
a prior art reference was publicly accessible before the priority
date of a challenged patent. Meanwhile, patent owners should take
advantage of opportunities to challenge the public accessibility of
references, particularly where the evidence and arguments in a
petition are conclusory; such challenges can be
