Electronically Posted Documents as Prior Art

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Originally published in BNA’s Patent, Trademark & Copyright Journal, 85 PTCJ 365, 01/11/2013.

In the wake of a recent Federal Circuit case, the author offers a test for determining whether electronically posted documents qualify as invalidating prior art under Section 102(b) of the Patent Act.

The U.S. Court of Appeals for the Federal Circuit recently provided additional insight on establishing when a document posted online qualifies as a printed publication and, therefore, as prior art that can be cited against a patent or patent application under 35 U.S.C. § 102(b). Voter Verified Inc. v. Premier Election Solutions Inc., 698 F.3d 1374, 104 U.S.P.Q.2d 1553 (Fed. Cir. 2012) (85 PTCJ 37, 11/9/12). In this decision, the Federal Circuit held that when considering whether an online document qualifies as a printed publication, a key inquiry is whether the reference was made sufficiently accessible to the public interested in that technology, but that indexing of the website is not required.

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