Undated Screenshot Insufficient To Prove Public Accessibility Of GitHub Repository

In AO Kaspersky Lab v. Open Text Inc., the PTAB denied inter partes review after determining that a screenshot of a GitHub repository was insufficient to establish that a whitepaper posted to that repository qualified as a printed publication. IPR2023-00895, Paper 7 at 9 (Dec. 7, 2023) ("Decision"). This IPR involves U.S. Patent No. 10,284,591 ("the '591 patent"), directed to systems and methods that monitor, block, and report bugs or malware hidden in computer programs. Id.

The petitioner, AO Kaspersky Lab, argued that a whitepaper authored by Fratric ("Fratric") anticipated or rendered obvious all the claims of the ʼ591 patent. Decision at 2. The PTAB noted that "the petitioner bears the burden of establishing by a preponderance of the evidence that a particular document is a printed publication," and "[t]he key inquiry is whether or not a reference has been made publicly accessible." Decision at 8-9 (quoting Nobel Biocare Servs. AG v. Instradent USA, Inc., 903