Relevant Public, Not General Public, When Determining Availability Of Printed Publication

On July 27, 2018, the Federal Circuit reversed the PTAB's finding that Petitioner GoPro, Inc. failed to establish the public availability of an alleged prior art printed publication. GoPro, Inc. v. Contour IP Holding LLC, __ F. __, slip op. (Fed. Cir. 2018). The alleged prior art printed publication in question was a 2009 GoPro sales catalog distributed at a dealer trade show. GoPro relied on the sales catalog in every ground challenging the claims of U.S. Patent Nos. 8,890,954 and 8,896,694. After finding that the sales catalog did not qualify as a prior art printed publication under 35 U.S.C. §102(b), the PTAB held that none of the challenged claims were invalid.

The facts are uncontested. Along with the sales catalog itself, GoPro produced a declaration from GoPro employee Damon Jones relating to the distribution of the sales catalog. Mr. Jones worked for GoPro during the relevant time period and participated in various trade organizations related to GoPro's