Publication Need Not Be Indexed/Searchable To Be Prior Art

CAFC Emphasizes Flexibility of its Printed Publication Jurisprudence

Last week, I pointed out that the Federal Circuit faulted the Patent Trial & Appeal Board (PTAB) for its narrow public accessibility analysis in Medtronic, Inc. v. Barry. Given the de novo review of printed publication status at the Federal Circuit, it is an issue that is frequently challenged on appeal.

Last Friday the Court took another opportunity to apply its multi-factor analysis to a printed publication dispute in GoPro Inc., v. Cointour IP Holdings, LLC. In GoPro, the Court once again emphasized that focusing on a single factor (expertise of the audience) to the exclusion of others is reversible error. In reversing the Board's decision in GoPro, the Court emphasized ( here) that the reasonable diligence standard is applied to those skilled in the art. And that, proof of actual dissemination is not required, only that a person of skill could have located the publication with reasonable